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Minos W. Millwee, Justice. Appellee, "Walter Nash, brought this action in unlawful detainer against appellant, Mrs. J. B. Hastings, and recovered judgment for possession of the property together with rents in the sum of $361.67. This appeal follows. The following facts are stipulated. Appellant has occupied the premises belonging to appellee for a number of years on a month to month rental basis, the monthly rental period being from the 7th of the month to the 7th of each succeeding month, and all rents have been paid promptly. Having complied with O.P.A. regulations, appellee on August 9, 1946, gave appellant written notice to vacate the premises not later than. November 9, 1946. It further appears from the record that appellant still occupied the premises on March 27, 1947, when the instant suit was filed after a three-day written notice to quit had been served on appellant on February 22, 1947, pursuant to Ark. Stats., (1947), § 34-1503. The issue here is the sufficiency of the notice served on appellant on August 9, 1946, to vacate the premises not later than November-9, 1946. We have no statute regulating the length of notice required to terminate a tenancy from month to month and are, therefore, governed by the common law rule, which is stated as follows in Dillon v. Miller, 207 Ark. 401, 180 S. W. 2d 832: “In the absence of an agreement between them providing otherwise, either the landlord or the tenant may terminate a monthly tenancy by, and only by, giving the other party thirty days written notice of his election to so terminate it, ‘the notice ending with a monthly period.’ King v. Solmson, 188 Ark. 237, 65 S. W. 2d 19; Peel v. Lane, 148 Ark. 79, 229 S. W. 20; Reece v. Leslie, 105 Ark. 127, 150 S. W. 579; Stewart v. Murrell, 65 Ark. 471, 47 S. W. 130; Fizzell v. Duffer, 58 Ark. 612, 25 S. W. 1111.” The exact holding in the Dillon case, supra, is stated in Headnote 2, as follows: “Where the landlord undertakes to set forth in the notice the exact day on which possession of the premises should be delivered up, the day so designated may properly correspond with either the first or the last day of the rental period.” It is noted that the notice in the instant case did not set forth the exact day upon which possession was to be yielded but provided that appellants should vacate “not later than” November 9, 1946. The words, “not later than” were held to be synonymous with “at any time prior to” in Hughes v. U. S., (C. C. A. Tenn.) 115 F. 2d 285. It is held generally that a tenant cannot complain that he is given longer notice to quit than the law requires. 32 Am. Jur., Landlord and Tenant, p. 840. In Boss v. Hagan, 49 App. D.C. 106, 261 F. 254, 8 A. L. R. 1508, the court held that the fact that the notice gave the tenant a day following the date of the recurring date of the holding to vacate did not render the notice invalid. It has also been held that a mistake in fixing the date of the termination of a tenancy which does not mislead or harm the other party will not invalidate the notice. Gulley v. Mayo, 191 Miss. 143, 1 So. 2d 800. At the time of the filing of the instant suit, appellant had withheld possession of the premises from appellee for more than four months following the expiration of the notice to vacate. Three recurring rental periods expired between the date of the giving of the notice and its termination and there is nothing in the record to indicate a waiver of the terms of the notice on the part of appellee. Under these circumstances, it is the opinion of the majority, in which Justice George Rose Smith and the writer do not concur, that appellant is in no position to contend that the notice to vacate was insufficient. Affirmed. McFaddin, J., concurs.

Ed. F. McFaddin, Justice. This appeal involves a claim against the estate of Harry Morris, who died on April 28,1946, at the age of 62 years. He was a bachelor, and for many years lived at the home of his sister, Mrs. C. W. Morgan, whom he had -named as beneficiary in a life insurance policy for the face amount of $1,000. Mrs. Morgan predeceased Harry Morris, and he failed to designate another beneficiary, so that the proceeds of the policy were paid to Morris’ administrator. Thereupon the husband and heirs of Mrs. Morgan (there being no administration on her estate) filed claim against Morris ’ estate on account of room and board for the period of three years immediately preceding his death. Appellants, being the other heirs of Morris, resisted the claim. The Probate Court allowed the claim in the sum of $720, and appellants— in seeking to reverse the judgment— present the three points now to be discussed. I. Appellants Insist that This Claim Gan be Filed Only by an Administrator of the Estate of Mrs. Morgan. There was no administration on Mrs. Morgan’s estate, and this claim was filed by the husband and children of Mrs. Morgan. Such procedure is sanctioned by § 1, Pope’s Digest, which reads in part: “When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, See, also, Beneux v. Brown Shoe Co., 191 Ark. 579, 87 S. W. 2d 28. The affidavit to the claim against the estate of Harry Morris is in the language of § 101, Pope’s Digest. So we disallow the appellants’ first contention. II. The Claimants as Witnesses. At the trial in the Probate Court Mr. Morgan and two of Mrs. Morgan’s daughters — all three witnesses being claimants — testified as to the amount of the claim and to statements made by the deceased. Appellants insist that the testimony of each of these three witnesses violates § 2 of the schedule of our Constitution, which reads in part: “. . . in actions by or against executors, administrators or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.” We agree that the evidence of Mr. Morgan and his two daughters should be excluded. Probate appeals are tried in this court ele novo, and we consider only legally competent evidence in arriving at our decision, so we disregard the excluded testimony. III. The Sufficiency of the Evidence. With the incompetent evidence excluded, we come then to the sufficiency of the remaining evidence. Charles Wilson was a business associate of the deceased, Harry Morris, and was a legally competent witness. Wilson testified that for many years Morris boarded at the home of his sister, Mrs. Morgan; that Morris told him that “he wanted to take care of her and pay her for the trouble she had gone to in taking care of him.” Wilson also testified that he knew another person similarly situated who had been paying $15 per week for room and board during the preceding two or three years. The claim, here, was filed for $1,440, being room and board at $40 per month for three years. There was evidence, however, that Morris had provided some of the grocery items from time to time; so the Probate Court allowed the claim for $720, and rendered judgment for that amount. Appellants say that the filing of the claim for room and” board was an “afterthought”, and an effort to obtain the insurance money which failed to come to Mrs. Morgan since she predeceased the insured. Even so, the claim was duly and properly filed, and there was ample evidence that a claim for room and board was justly due and owing, and that the deceased intended for Mrs. Morgan to be paid. We cannot say that the judgment is contrary to the preponderance of the evidence. Affirmed. See § 62-104 Ark. Stats of 1947. See § 62-1008 Ark. Stats. of 1947. See, also, Cash v. Kirkham, 67 Ark. 318, 55 S. W. 18; Davis v. Nipper’s estate, 207 Ark. 83, 179 S. W. 2d 183; and see, also, annotation in 155 A. L. R. 961. Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75 and see Davis v. Nipper’s estate, 207 Ark. 83, 179 S. W. 2d 183.

Griffin Smith, Chief Justice. A decree of divorce was granted Norbert J. Wilde in January of this year on the ground that his wife had wilfully deserted him. The determining question is whether the Arkansas Court had jurisdiction, Mrs. Wilde’s contention being that the plaintiff was not a resident of West Memphis. In this respect we agree with the appellant. Appellee, who in 1944 was a dentist, married appellant in Chicago in December, 1942. The couple lived together until September, 1944, and in October Dr. Wilde enlisted in the armed forces. He was sent overseas in 1945, returning in 1946. Letters written by him during the period of separation mentioned incompatibility. There was the suggestion of divorce. Upon his return to the United States, appellee joined his wife in Chicago, and shortly thereafter received his discharge from the navy. He had concluded to study medicine, with the expectation of specializing in surgery. With this in view he went to Buffalo, N. Y., in July. Between May and July appellant and appellee occupied the same room, but according to the testimony of each they did not cohabit in the true matrimonial sense, the more intimate relationship having been discontinued in February or March, 1944. In September, 1946, appellee resigned his position in a Buffalo Hospital and went to Memphis, Tenn., where he entered a hospital to procure further training, at a salary of $275 per month. March 11, 1947, Dr. Wilde, alleging his residence to be West Memphis, sued for divorce. The complaint was dismissed October 20th with a finding that the plaintiff’s charges of indignities and desertion were not corroborated. In March, 1948, the suit resulting in this appeal was filed. In response to a motion to make the complaint more definite and certain, appellee asserted that separation without cohabitation had continued for more than three years. The final decree found that the plaintiff was entitled to a divorce on the ground of. desertion. The 1948 complaint alleged that “no children were born to this union, and there are no common property rights to be adjusted.” Testimony revealed there was a young son. The mother’s right to the child’s custody was not questioned by appellee, and the child is not mentioned in the decree. Mrs. Wilde testified that, although during their separation her husband had not sent money for support of the boy, nor assisted her in any manner, yet in spite of his “generally belligerent, hostile, and arrogant attitude,” she had never ceased to love him, and would gladly live with him if he would provide a home. The divorce was being contested “because I believe in the permanency of marriage, [and] I think perhaps sometime something will happen, [and] that we will be able to get back together. ’ ’ Dr. Wilde laid upon his wife the entire blame for separation, contending that she was indifferent, non- responsive, and liad refused to go with him when his professional status required a change in abode. He undertook to have Mrs. Wilde join him in the purchase of a home in Memphis, but she found fault with the suggestion. While relations of the parties have no controlling part in the determination of the appeal, they are mentioned to better understand the reasons given by Dr. Wilde for going to Memphis. Dr. Wilde explained that he regarded West Memphis as a “coming” city — a place suitable for beginning his career as a surgeon. Bonds had heen voted for a hospital, and in other respects the outlook was inviting. The Doctor paid a poll tax in Crittenden County for 1947. He procured a 1947 automobile license and renewed it in 1948. In December, 1946, he applied for permission to take the Arkansas medical examination, but was not permitted to do so because he had not been examined in the basic sciences. He took this examination in June, 1947, then renewed his application for a medical examination, but did not pursue the request. His assertion that for more than sixty days before filing the second suit, and for more than ninety days preceding the decree, he had been a resident of West Memphis, is based upon proof that in December, 1946, he rented a room at the home of Mrs. J. B. Bryant, who testified that the Doctor began living there in January of the following year. He spent “on an average” three or four nights a week in the •quarters so procured. Counsel for appellant, in an effort to show that this conduct was colorable, procured from Mrs. Bryant on cross-examination an admission that Dr. Wilde did not have a trunk or suit case, and that his personal belongings consisted of clothing, such as coats, shoes, some shirts, and socks. He did have what would be called “a little weekend bag— ... he just brought his suits there on coat hangers; and his shirts in a suit case, but carried the suit case away, and they are all in my closet and dresser drawers. He left in June, 1948, taking some of his personal belongings with him, but leaving three suits, some shoes, and some underwear.” Appellant, in her answer of June 21, 1948, asserted that the plaintiff had left Memphis, Tenn., and had gone to California. The allegation that Dr. Wil.de went to California was not denied, but when the case was orally argued it was insisted that the trip was in furtherance of his professional status, and that his stay was temporary. There was testimony that the Kennedy Hospital in Memphis, where Dr. Wilde was an intern, provided living quarters for unmarried staff employes. A witness for appellee testified that Dr. Wilde did not maintain a room at the Hospital, but slept there “two, three, or four nights a week.” His duties made this necessary. This' same witness testified that he did not know how often Dr. Wilde slept in the Hospital, — “but at least he has to be on duty there once in a while, and my opinion is he lives at the Hospital and in West Memphis. I don’t know of any other place he could live. ’ ’ Our view is that appellee failed to meet the burden of proving an intent to make Arkansas his home and to emphasize this intent with convincing manifestations. It is significant that nearly six months before the decree was granted the Doctor had gone to California. This fact of itself is not sufficient to show abandonment of a fixed abode, but when considered with the impermanent nature of his arrangements in West Memphis, and other transactions, the factual fabric preponderates in favor of appellant’s contention that Dr. Wilde was out shopping for a favorable divorce field, and that the transatory nature of his abode in West Memphis was merely a venue overture, unaccompanied by an intent to remain. See Barth v. Barth, 204 Ark. 151, 161 S. W. 2d 393, citing the Hillman case (200 Ark. 340, 138 S. W. 2d 1051); Gilmore v. Gilmore, 204 Ark. 643, 164 S. W. 2d 446; Parseghian v. Parseghian, 206 Ark. 869, 178 S. W. 2d 49; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556; Swanson v. Swanson, 212 Ark. 439, 206 S. W. 2d 169; Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585; Walters v. Walters, 213 Ark. 497, 211 S. W. 2d 110; Carlson v. Carlson, 198 Ark. 231, 128 S. W. 2d 242. Other cases are to the same effect. Reversed, with directions to vacate the decree. . A fee of $100 is allowed appellant’s attorney.

Ed. F. McFaddin, Justice. This suit involves a building contract. On March 30, 1948, N. C. Withrow, Jr. (hereinafter called owner) entered into a contract with O. A. Wright (hereinafter called contractor) for the construction of a residence. Work began on April 1, 1948, and continued until some time in July, 1948, when the contractor left the job after the architect refused to allow the interior of the house to be plastered. On October 1, 1948, the owner filed this suit against the contractor, claiming damages in the sum of $4,564.01, and seeking an injunction to prevent the contractor from filing a lien on the property. The contractor counterclaimed for $4,901.51, as the balance on the contract. Trial in the chancery court resulted in a decree awarding the contractor (1) a judgment for $4,652.81 and (2) a lien on the property for the payment of said judgment. To reverse that decree, there is this appeal. The Contract provided, inter alia: “The Contractor shall furnish all of the materials and perform all of the work shown on the Drawings and described in the Specifications entitled two (2) bedroom residence, as per plans and Specifications prepared by Nevil C. Withrow, Sr., with exceptions as noted on proposal dated February 6, 1948.” It is admitted by all parties that the contractor was not “to furnish all of the materials”, even though so stated in the contract, since the Specifications and also the Proposal varied the quoted language. Section 6 of the Specifications, even as deleted when offered in evidence, showed, the materials to be furnished by the owner to be: “Metal frames and trim; copper coat paper, thresholds; sliding door, tracks and hardware; aluminum sills; waterproofing and dampproofing; cement floor colors; plate glass settings; aluminum windows and screens; Zonolite concrete and plaster aggregate. ’ ’ Furthermore, the Proposal of February 6, 1948, showed the following items to be furnished by the owner: ‘ ‘ Metal door frames and trim; copper coat paper; thresholds; sliding door tracks and hardware; aluminum sills; waterproofing and dampproofing; cement floor colors; plate glass; “window glass, glazing and setting; aluminum window trim and screens; Zonolite concrete and plaster aggregate; weather stripping; window cleaning; building paper; all cabinets; mirrors; fireplace dampers; insulation material; Parkay flooring and labor; electric wiring, fixtures and labor; heating system; landscaping. ’ ’ The plans, Specifications and drawings were frequently changed by the architect, and during the course of the work tlie owner paid the contractor a total of $3,854.15 on the contract and extras. From the inception of the work until the contractor left the job some time in July, there were ever recurrent changes in plans and also constant strife between the owner and architect on the one side, and the contractor and his workers on the other. The testimony is in the sharpest conflict as to who was at fault, The architect is the father of the owner, and seems to have taken complete charge and acted both as architect and as owner in the place of his son, N. C. Withrow, Jr. At one time the owner asked one of the workmen why something was being done which was a change iu the plans; and when the workman advised the owner that Mr. Withrow, Sr., had ordered the change, then the owner replied: “Well, don’t ever ask me another thing about the job. I am washing my hands of it. If he is going to handle it, let him handle it. ’ ’ In July when the contractor was ready to commence plastering the interior, Mr. Withrow, Sr. forbade the plastering, and thereupon the contractor left the job and the owner had the residence completed by another builder. Appellants urge six assignments for reversal. Assignment number one relates to some language of the trial court regarding the Proposal not being a part of the contract. We fail to see how the appellant was prejudiced in any wise by this statement of the trial court, because the Proposal lists many more items to be furnished by the owner than were carried forward into the Specifications. We have previously detailed these items. Including the Proposal as a part of the Contract does not improve the case for the appellant. Assignments numbers two, three and six relate, ultimately, to the fact that the Court accepted the contractor’s version of the facts, rather than the owner’s, and rendered judgment against the owner for $4,652.81. As previously stated, the evidence was in the sharpest dispute; and to review the testimony of each witness would serve no useful purpose. We cannot say that the Chancery Court’s decree is contrary to the preponder anee .of the evidence as regards the amount of the judgment. Assignment number four complains of that portion of the Court’s language in the decree which recites: “ . . . that the architect was prejudicial, biased and partial in his supervision, criticism and rejection of the construction; . . .” While the quoted language may appear to be harsh, yet it must be remembered that the architect is the father of the owner, and it is but natural that a father would honestly view any transaction in a light more favorable to his son than to a third party. From a reading of the entire evidence we understand the language of the trial court to mean that N. C. Withrow, Sr. acted more as the father of N. C. Withrow, Jr., than as an impartial architect. Such a statement was not intended as a reflection on Mr. Withrow, Sr.; but as a statement of facts borne out by the evidence. Appellants’ assignment number five relates to that portion of the decree which awarded the contractor a lien- on the building and land for the full amount of his judgment; and the appellants are partially correct in this assignment. There was no lien agreed to in the Contract between the parties, so the only lien the contractor could possibly claim is one arising either by equitable subrogation or by statute. What we will now say concerning the statute gives the contractor all of the relief he could claim under equitable subrogation — so we need not decide whether such doctrine is applicable. Our statutes (§§ 8865, et seq., Pope’s Digest, and §§ 51-601, et seq., Ark. Stats, of 1947) give a lien for work done or materials furnished. In Shaw v. Rackensack Apt. Corp., 174 Ark. 492, 295 S. W. 966, we held that the contractor who furnished materials and paid labor bills was entitled to a lien for such amounts; and when the contract required the contractor to furnish all labor and materials under his contract, he was entitled to a lien for the balance due him under the contract when he had performed it. In Cook v. Moore, 152 Ark. 590, 239 S. W. 750, we held that the contractor was not entitled to a lien for his profits over and above the bills for labor and materials. In the application of these holdings to the case at bar, it is evident that Wright is entitled to a lien for the amounts he paid for labor and materials that actually went into the construction of the building; but he is not entitled to a lien for his profits. From the evidence before us, it is impossible to determine how much Wright actually paid for labor and materials that went into the construction of the building. He testified that he had paid all bills incurred by him, except one; but the amounts so paid were not segregated from the overhead profit, and in several instances, the exhibits indicate “20% added.” We therefore hold that under our statutes Wright is entitled only to a lien for the amounts he paid for labor and materials that actually went into the construction of the building. This part of the cause must be remanded for such amount to be determined. .In all respects, except as to the lien question, the decree of the Chancery Court is affirmed. As to the lien question, the decree is in part reversed, and the cause remanded for further proceedings not inconsistent with this opinion. All costs are taxed against the appellants. Griffin Smith, C. J., not participating. In the later case of Halbert & Son v. Baker, 176 Ark. 971, 4 S. W. 2d 1 we reaffirmed the fact that a contractor was entitled to a lien in the circumstances there shown.

Ed. F. McFaddin, Justice. This is the so-called “Cash Fund” case. Appellant (plaintiff below) filed proceeding's in the Chancery Court, claiming relief as a citizen and taxpayer. The defendants (appellees here) were: the State Comptroller, L. R. Beasley, and other persons as the board members in charge of various state agencies and institutions and their disbursing agents. Some of the institutions are: the University of Arkansas, Henderson State Teachers College, the State Hospital for Nervous Diseases and the State Tuberculosis Sanitorium. We will refer to the State Comptroller as such, and to all the other defendants as “state agencies and institutions. ’ ’ Plaintiff’s pleadings allege: (1) that each of the said state agencies and institutions has a cash fund derived from various sources; (2) that all such cash funds are public money and should be deposited immediately in the state treasury and expended only after appropriation acts by the Legislature; (3) that'the state agencies and institutions are expending these cash funds as the governing boards see fit, and without legislative appropriation; (4) that the State Comptroller is auditing and not officially disapproving expenditures from the cash funds by the state agencies and institutions, and that the State Comptroller should be restrained from approving vouchers for payment from said cash funds; and (5) that some portions of the said cash funds of some of the state agencies and institutions are being used to supplement the salaries paid employees, so that such employees are in fact receiving compensation greater than the amount fixed by the Legislature. The prayers of the plaintiff’s pleadings were: “ . . . that the Court enjoin temporarily and permanently the defendants, and each of them, from appropriating, paying out or in any manner depleting any of such funds herein referred to now in their possession, or that may come into their possession in the future, which have not been appropriated for a specific purpose by an Act of the Arkansas Legislature; and that this Court issue a mandatory injunction against the defendants, and each of them, requiring them to deposit any and all of such funds now in their possession or under their control, or that may come into their possession or under their control, in the treasury of the State of Arkansas; that the State Comptroller, L. R. Beasley, be restrained from approving for payment any voucher of any kind or character whatsoever against any fund of any of the State institutions herein named, known as ‘cash funds’ or funds which have not been previously appropriated by the Arkansas Legislature for specific purposes; that the order of the Court herein apply not only to the defendants herein named, but to their successors in office; that defendants, and each of them, be restrained temporarily and permanently from in any manner paying out or in any manner causing to be paid out any of such funds named in this cause for salaries of any officer or employee of any of the institutions or agencies named in this cause, which salaries have not previously been fixed and appropriated by the Legislature, and for any and all other proper relief to which the complainant herein may be entitled in equity. ’ ’ Answers filed by some of the defendants alleged the corporate status of the state agencies and institutions represented by them, while other answers denied every material allegation of the plaintiff’s pleadings. All answers prayed that the proceedings be dismissed. The case was heard on 'oral evidence, to which we will hereinafter refer. The Chancery Court entered a decree dismissing the complaint; and there is this appeal challenging the correctness of that decree. There is. only one allegation that anything is being done in violation of what the Legislature has permitted, and that allegation is that some portions of the cash funds are being used to supplement the salaries of certain employees, so that such employees are receiving compensation greater than the amounts fixed by the Legislature. This allegation will be discussed in topic II, infra. All the other allegations involve the question, whether the Legislature has proceeded in a constitutional manner. That will be discussed in Topic I, infra. I. The Constitutional Question. Appellant cites Art. V, § 29 of the Constitution: “No money shall be drawn from the treasury except in pursuance of specific appropriations made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years. ”; and, also, Art. XVI, § 12: “No money shall he paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation. ’ ’ The constitutional provisions, as above quoted, refer to “the treasury.” The case of Straub v. Gordon, 27 Ark. 625 holds that “the treasury” means the state treasury. So the constitutional language “no money shall be paid out of (drawn from) the treasury . . .” necessarily refers only to money that has reached the state treasury, and does not refer to money held elsewhere. Appellant urges that all the money received by the various state agencies and institutions should be paid into the state treasury, and that the Legislature is without power to authorize otherwise. It is shown by the proof that many, if not all, of the state agencies and institutions involved in this suit have cash funds — derived from such sources as students’ fees, sale of farm produce, dormitory charges, etc. — held by said institutions and agencies either under express legislative permission or under circumstances known to the Legislature and not prohibited by it. It was also shown that no part of the cash funds of any of the state agencies and institutions is derived from taxes, but, rather, from the operation of such state agencies and institutions. So, for purposes of this topic “cash funds” are those received by the state agencies and institutions from sources other than taxes, as the term “taxes” is ordinarily used; The question is, whether the Constitution of Arkansas requires that all such cash funds be deposited into the state treasury. If it does, then the appellant is correct on this point; if it does not, then he is in error. In determining the answer to the posed question, we emphasize that the Legislature, as the supreme law-making body, possesses all legislative powers except those expressly or impliedly prohibited by the Constitution. State v. Ashley, 1 Ark. 513; Straub v. Gordon, 27 Ark. 625; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. So we examine the Constitution to see if the Legislature is prohibited from allowing the' state agencies and institutions to have and disburse cash funds. It will be observed that both in Art. V, § 29 and Art. XVI, § 12, as previously copied, it is required that no money shall be drawn from the treasury until the same shall have been duly appropriated. There is no language in our present Constitution which requires that all of the public money shall be paid into the state treasury. Such a provision exists in the Constitutions of some States, but not in our present Constitution. For instance, in the Arkansas Constitution of 1868 there was a provision (Art. X, § 17) which read: “The general assembly shall tax all privileges, . . . and the amount thus raised shall be paid into the treasury.” Likewise, the 1875 Constitution of Missouri provides in Art. IV, § 43: “All revenue collected and all moneys received by the State from any source whatsoever shall go into the treasury, . . .” In the 1902 Constitution of Virginia, § 186, there is this language: “All taxes, licenses and other revenue of the State shall be collected by its proper officers and paid into the state treasury. No money shall be-paid out of the state treasury except in pursuance of appropriations made by law; . . . ” It will be observed that in the quoted provisions from these Constitutions there is the requirement of deposit into the treasury. But when these Constitutions are compared with the present Arkansas Constitution (of 1874), it is clear that our present Constitution requires only that money in the treasury shall not be removed except by legislative appropriation. There is no requirement in the present Arkansas Constitution that all public money shall be paid into the state treasury. The absence of such a provision from our present Constitution appears to have been a studied and deliberate omission. Certainly, such omission leaves the Legislature of this State free to provide that public money derived as in this case may be deposited as cash funds, for use by the state agencies and institutions. To buttress the conclusion reached, we point out that Art. VI, § 22 of our present Constitution provides that the State Treasurer: “ . . . shall perform such duties as may be prescribed by law.” Thus the Constitution clearly empowers the Legislature ' to decide whether the State Treasurer shall be required to receive all state funds. This Art. VI, § 22 of our present Constitution was so worded in light of the fact then existing that the Revised Statutes of 1836 (Chap. 18, § 22) prescribed the Treasurer’s duties: “To receive and keep all monies of the State not expressly required by law to be kept by some other person . . .” The conclusion is inescapable that the Constitution of 1874 empowered the Legislature to state what money should be paid into the state treasury. It was conceded by appellees in the oral argument that all the cash funds of the state agencies and institutions are public moneys. The Legislature could require that all these funds be paid into the state treasury, and the Legislature could require that none of these funds be expended without, appropriation by the Legislature. But the question here is not what the Legislature might do with these funds. The question is whether the Constitution requires that all these moneys be paid into the state treasury. We find no such provision. To that extent the appellant is in error in this case. II. Use of Cash Funds to Supplement Salaries. Some of the legislative appropriation acts for the state agencies and institutions by express language have limited the salaries of various employees to amounts not in excess of those expressed. The proof in this case shows that, notwithstanding such restrictive language, some of the state agencies and institutions have used some of ■the cash funds to supplement such salaries, with the result that some employees are receiving salaries greater than those fixed by the Legislature, as aforesaid. This is an illegal procedure, and the appellant is entitled to have an injunction against such procedure. Art. XVI, § 4 of the Constitution of Arkansas says: “. . . and the number and salaries of the clerks and employees of different departments of the State shall be fixed by law. ’ ’ One illustration suffices to make clear our holding. By Act 169 of 1949 the Legislature made appropriation for the maintenance and operation of the University of Arkansas for the biennial period ending June 30, 1951. Section 1 of the Act reads in part: “There is hereby established for the University of Arkansas the maximum number of officials and employees necessary for the maintenance and operation of said department, and the maximum rates of salaries for said officials and employees; and there is hereby appropriated, to be payable from the University of Arkansas fund, for said salaries and other purposes, as set out herein, the following: Maximum Annual Salary Rate ' ‘ 14. Salary of 30 staff members, not to ■exceed per year each....................................$4,800.00”. Thus by this Act the Legislature has prescribed the maximum salary that may be received from the public funds; and it is illegal for any state agency or institution to use a portion of its cash fund (which is public money, as previously stated) to increase the salary fixed by the Legislature. It was conceded by the appellant in the oral argument that authority of the Legislature to fix compensation in excess of the constitutional limitation is not presented in this case. Neither are we here concerned with the sufficiency or insufficiency of the language in the said appropriation act quoted, nor the question of a “line-by-line” appropriation. We are concerned here only with the fact that in some instances it has been shown that the maximum annual salary as limited in the appropriation act has been supplemented with money from the cash fund. We hold that when the Legislature fixes the maximum annual salary of an employee, then no state agency or institution may use any part of its cash fund to supplement or enlarge the salary so fixed by the Legislature, and the State Comptroller should disapprove any expenditure from such cash fund of any amount to any employee, if such expenditure results in the employee’s thereby receiving a greater salary than fixed by the Legislature, and the state agency or institution so offending should be enjoined from paying out cash funds that accomplish such result. In this connection, we point out that some employees (for example, see § 17-517 Ark. Stats, of 1917) receive additional compensation derived from federal as well as county sources, and some also from endowments or gifts. The legislative determination in the appropriation act of a maximum annual salary does not prohibit such supplementation from funds from such other sources, as these are not “cash funds” within the purview of this topic. No injunction should prohibit the supplementation of salaries by the use of funds given for salary purposes by sources not controlled by the Legislature, such as private donations and federal grants. Of course, the agencies and institutions may accept donations earmarked for salaries, even though they may not use general cash funds to increase the salaries fixed by the Legislature. Therefore we reverse only that part of the decree which dismissed the portion of plaintiff’s complaint’ covered by this topic II of this opinion; and we rp.-ma.nrl the cause on this Topic II, to the Chancery Court, to enter a decree in accordance with this opinion. In all other respects the decree of the Chancery Court is affirmed. Leelar, J., disqualified and not participating. Act 63 of 1933 established the system complained of in this case. See also §§ 13-212, et seq., Ark. Stats. (1947) regulating the auditing-of cash funds of various state agencies and institutions. Straub v. Gordon involved a provision of the Arkansas Constitution of 1868. The opinion was delivered in 1872, so the definition of “treasury” had been judicially determined before those words were employed in our present Constitution of 1874. The complaint lists the following cash funds: “Land Department; Barber Examiners Board; Licensing Board General Contractors; Labor Department, Boiler Inspection Division; Employment Security Division; Public Service Commission; Revenue Department; State Plant Board; Resources and Development Commission; State Hospital; Tuberculosis Sanatorium; McRae Memorial Sanatorium; Confederate Home; White Boys’ Industrial School; Arkansas Girls Training School; Health Department; Board of Cosmetology; Livestock Sanitary Board; Arkansas Merit System Council; University of Arkansas Medical School; University Extension Service; State Teachers College; Henderson State Teachers College; Arkansas State College, Jonesboro; Arkansas Polytechnic College; A. and M. College, Magnolia; A. and M. College, Monticello; A. M. and N. College, Pine Bluff; Junior Agricultural College; Education Department; Vocational Education; Library Commission; School for the Blind; School for the Deaf; Supreme Court Library; Vocational Training School, Clinton; Vocational Training School, Huntsville; War Memorial Stadium Commission; and Educational Department Surplus Property.” This Court used the following language in this opinion, all of which is apropos to the case at bar: “Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this court. First, that the Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act (Straub v. Gordon, 27 Ark. 625), and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: ‘It is not to be doubted that the Legislature has the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.’ Second, that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act. State v. Ashley, 1 Ark. 513-552; Eason v. State, 11 Ark. 481; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762; and in Standard Oil Co. of La. v. Brodie, 153 Ark. 114, 239 S. W. 753, this court quoted the language of the Supreme Court of the U. S. in Hooper v. California, 155 U. S. 657, 15 S. Ct. 207, 39 L. Ed. 297, that ‘the elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality.’ ” This constitutional provision was involved in the case of Straub v. Gordon, 27 Ark. 625 (decided in 1872). Chap. 18, § 22 of the. Revised Statutes of 1836 is now § 5526, Pope’s Digest and § 12-609, Ark. Stats. of 1947. See Newton v. State, 33 Ark. 276. Italics our own. The proof did not relate to this particular item. We have used it merely to illustrate the situation. In Humphrey v. Wyatt, 188 Ark. 676, 67 S. W. 2d 209, we discussed the fixing of salaries. Concerning “extra compensation,” see Art. V, § 27 of the Constitution. See Art. XIX, § 23 of the Constitution. See Art. V, §§ 29 and 30 of the Constitution. See Art. XVI, § 4 of the Constitution.

Smith, J. Appellant was tried under an indictment charging him with the crime of murder in the first de gree, alleged to have been committed by shooting one Morris Hastings. He was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed. The facts in regard to the killing are substantially as follows: The appellant, who will hereinafter be referred to as the defendant, and Hastings, who will be referred to as the deceased, had always been on friendly terms and had frequently hunted together. Defendant was thirty-eight years old, and at the time of the killing was under treatment by a physician for hernia, and was a much smaller man than deceased, who was twenty-three years old, six feet tall, and of athletic build. The killing occurred about nine o’clock Thursday morning, February 17, 1921, in the little town of Grady, in Lincoln County, where both parties had lived for a number of years. According to defendant, he had bought a bird dog the day before, in payment of which he had given a check on his local bank, and, not being certain that he had enough money in the bank to pay the check, he had gotten $25 from his bookkeeper that morning and was hurrying to reach the bank before the check was presented for payment. On the way to the bank and while near the depot, he met deceased and told him that he had just bought a stud pup, whereupon deceased said, “I have been looking for you, you son-of-a-bitch; you had better be thinking about your neck instead of dogs.” Defendant asked, “What is the matter, Morris?” when, according to defendant, deceased “said something about whát my wife told his mother.” According to defendant, he assured deceased there was some mistake, that he had said nothing desrespectful .about his mother, and that if she had taken offense at anything he had said he would be glad to explain or apologize. The deceased did not accept the explanation and grew more angry as the discussion progressed, and, after frequently cursing defendant in angry'.tones and with violent/ language, finally said, “I am going to stamp your God damn guts through your eyes,” and as he said this deceased lunged at defendant and put his hand in his pocket; whereupon defendant jumped back a step or two, drew his pistol and fired twice in rapid succession. Deceased fell between the rails of the railway track with a bullet through his heart, from which he died in a very short time. Witnesses saw the parties standing together and knew that a violent quarrel was in progress, but the testimony shows that defendant made only one gesture — • that with his hands — during the conversation; while deceased was seen to shake his 'finger in defendant’s face. A witness named Bittinger, who saw the beginning of the occurrence, heard deceased apply indecent epithets and threats to defendant, and supposed defendant would slap deceased, but when defendant failed to resent what was said, witness passed on and left the parties to their discussion. During all this time defendant had in one hand the bills which he had started to deposit in the bank. Immediately upon .firing the shots, defendant went to the bank and deposited his money. He then went directly to the office of Dr. Hutchinson, whom he requested to go at once to the relief of deceased, making the statement at the time that he had been compelled to shoot him. Defendant undertook to account for the possession of the pistol by stating that his store had been recently burglarized and a large quantity of' goods stolen. He admitted that he had a pistol in his store and another in his residence. There was testimony on the part of the State that deceased fell at the place where he had been standing, thus indicating that he had not advanced on defendant; and it was shown that deceased’s clothing was not powder burned, and that he was unarmed when he ’was killed. . It was shown that the evening before the killing deceased was talking about what defendant had said about his mother, something defendant’s wife had told his mother. Deceased told Dr. Hutchinson that he had been compelled to call a doctor to see his mother on account of her excitement over what defendant’s wife had told her, and that he would see defendant the following morning, and that if he did not apologize he would beat him up so that the whole town would know he had been whipped. Dr. Hutchinson undertook to pacify deceased, but met with no success in his attempt. Dr. Hutchinson communicated this fact to defendant that night, and defendant said he thought he could adjust the matter. The court allowed defendant to state fully everything deceased said when they met in regard to the insulting language used by defendant towards deceased’s mother, but excluded the testimony of a Mrs. Harding, who was present when the conversation between Mrs. Prewitt and Mrs. Hastings occurred and by whom they offered to prove what the conversation was. Mrs. Harding would have testified, had she been permitted to do so, that she heard the conversation, and that Mrs, Prewitt repeated to Mrs. Hastings a remark of defendant about how often he saw Mrs. Hastings on the street and how spry and youthful she appeared to be, and that the remark was a facetious compliment on Mrs'. Easting’s youthful appearance, and that there was nothing in the remark susceptible of a construction derogatory to Mrs. Hastings’ character. Upon reflection, Mrs. Hastings gave the remark a sinister interpretation, and became excited and ill over it, and repeated the remark to her son, giving, m its repetition, the interpretation she then placed on it. Defendant was not allowed to show by Dr. Hutchinson what his personal appearance and demeanor was when he arrived at the doctor’s office; and exceptions were saved to that ruling. The State called L. P. Spyker as a 'witness, who testified that he was the station agent at Grady, and was about ten feet inside his office and about twenty feet from the scene of the killing when the firing commenced, and that he immediately went to a window looking out on the scene of the killing. He described the relative situation of the parties, and, on Ms cross-examination, was asked this question: “When you looked out and saw Mr. Prewitt standing there, please describe to the jury what kind of éxpression was on Ms face at that time, as best you can.” The prosecuting attorney objected to the question as being a mere conclusion of the witness, and the court sustained the objection and remarked at the time that “nothing could be determined from that testimony.” Counsel for defendant then said: “We want to show from the expression on his face that there was no anger shown on his face at that time.” The court remarked: “I don’t think that is admissible, and it will be denied.” Thereupon counsel stated that “the defendant offers to prove by this witness, on cross-examination, that there was nothing whatever in the expression on the face of the defendant immediately after the shooting to indicate the slighest anger or resentment, and that defendant’s expression at that -time reflected only fright and fear.” Numerous errors are assigned for the reversal of the judgment, the first of which is that the jury was not sworn to try the cause. After the adjournment of the term at which the trial was had the record was amended by a nunc pro time order to show that the jury was sworn; and it is now insisted that -this order was made upon an insufficient showing. As the judgment is to be reversed, we do not stop to consider this question. A great many other assignments of error are dismissed in the briefs relating to alleged errors in the admission and exclusion of testimony and in giving and refusing instructions. We dispose of these questions generally by saying that we find no error in the record now before us except as hereinafter pointed out. It does appear that the court gave no instruction defining reasonable doubt, although, in instruction num bered 7 given by the court, the jury was told to acquit the defendant if, upon the whole case, they had a reasonable doubt of his guilt. The defendant asked instructions numbered 4 and 20 on the subject of reasonable doubt; but neither of those instructions undertoook to define that term,- and, the court having told the jury to acquit if there was a reasonable doubt of defendant’s guilt, no error was committed in refusing to multiply instructions to that effect. The defendant should have asked a correct instruction defining reasonable doubt, in which event only would he be in position to ask a reversal for a failure to define that term. Lackey v. State, 67 Ark. 416, 421; Mabry v. State, 80 Ark. 345, 349; Hobbs v. State, 86 Ark. 360, 361; Horton v. Jackson, 87 Ark. 528, 530; Bradsham v. State, 95 Ark. 409, 411; Holmes v. Bluff City Lumber Co., 97 Ark. 180, 188; Hays v. State, 129 Ark. 325; Gunter v. Williams, 137 Ark. 530, 537. It also appears that the court gave no instruction on the question of the credibility of the witnesses. The defendant did ask an instruction on this subject, but the one asked was not a correct declaration of the law. It concluded with the statement that “and, if you believe that any witness has wilfully given false testimony as to any material fact in the case, you may reject the entire testimony of said witness, or you may reject that which you find to be false and accept the remainder. ’ ’ In the case of Taylor v. State, 82 Ark. 540, an in struction of identical purport and of similar phraseology was reviewed and condemned by the court. Mr. Justice Riddick, speaking for the court, said: “This in effect tells the jury that if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony; and, if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply because the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told 1he truth, they should not reject it. * * *” Other later cases to the same effect are: Griffin v. State, 141 Ark. 46; Johnson v. State, 127 Ark. 524; Johnson v. State, 120 Ark. 202. As the defendant did not ask a correct instruction on this subject, he is in no position to complain of the failure of the court to charge on that subject. We are of the opinion that the court should have admitted the testimony of Mrs. Harding. The conversation which she would have detailed occurred only eighteen hours before rhe killing and was, without question, the cause of it; and we are of the opinion that the jury should have been allowed to know what the trouble was all about. It is true neither defendant nor deceased was then present, but the conversation was repeated to deceased by his mother shortly after it occurred, and the truth in regard to it as each party understood it may have probative value in ascertaining the motives of the respective parties. Testimony went to the jury, and properly so, that deceased was much incensed at what he thought was an offensivé statement reflecting, on his mother’s virtue. Defendant was permitted to testify that he told deceased he had cast no reflection on his mother, that he would he glad to explain and to apologize if deceased desired an apology. There was no witness to corroborate defendant, as no one heard the conversation between him and deceased. The jury may not have believed defendant’s statement. Had they believed his statement, it would have tended to show that defendant had no desire to kill deceased nor motive for doing so. In the very recent ease of Avey v. State, 149 Ark. 642, we held that proof of a motive for the killing was not a collateral matter. We there said: “This court las many times held that the State is not required to prove a motive to establish the guilt of one accused of homicide; but the court has also held that, as the absence of a motive is a circumstance tending to show innocence, the State may show the existence of a motive for taking the life of a decedent, to be considered with other facts and circumstances in determining the guilt or innocence of the accused.” See also Appleton State, 61 Ark. 590; Carr v. State, 43 Ark. 99; Scott v. State, 109 Ark. 391; Phillips v. State, 62 Ark. 119; Carroll v. State, 45 Ark. 539; Chapline v. State, 79 Ark. 444. Had the testimony of Mrs. Harding been admitted, the testimony of defendant concerning his explanation to deceased and his attempt to conciliate him might have appeared more probable to the jury, and, if believed, might have led the jury h: the conclusion that defendant was doing everything in bis power, consistent with his safety, to avoid the difficulty. At least it had probative value tending to that effect. We think the court properly excluded the testimony of Dr. Hutchinson about defendant’s appearance when he appeared at the office of the witness. Too much time had intervened between the time of the killing and that conversation. Opportunity had then been afforded for reflection and dissimulation. But we think the testimony of.Spyker should have been admitted. He was asked about defendant’s ap pearance at the very time of the killing — while the smoking pistol was in defendant’s hand. The witness should have been allowed to describe to the jury the expression on the face of defendant at the time as best he could as he was requested to do in the question which the court refused to permit him to answer. In Yol. 3 of Wigmore on Evidence, § 1974, that learned writer says: ‘£ The Opinion rule is often sought to be applied to forbid compendious descriptions of the appearances externally indicating internal states — for example, whether a person ‘looked’ sick or sad or angry. There is no more reason in this class of cases than in the preceding one for the Opinion rule to exclude the testimony. The exclusionary rulings perhaps here abound particularly in absurdities and quibbles— highly fit for cynical amusement, were not the names of Justice and Truth involved in their consideration.' One may wonder how long these solemn farces will be perpetuated in our law. ' In the note to the text quoted many cases are cited in which various courts have held that it is competent for a witness to describe one’s personal appearance, as, for instance, that he was angry, sick, excited, etc. See also Vol. 2 Wharton’s Criminal Evidence, § 922; 3 Chamberlayne, Modern Law of Evidence, § 1934; 16 C. J. p. 753, § 1545; Miller v. State, 94 Ark. 538; Decker v. State, 85 Ark. 64; Fort v. State, 52 Ark. 180. The defendant’s right to kill depended on the necessity so to do as the circumstances then appeared to him, and proper instructions on that subject were given to the jury. Did the defendant believe that the threats of great bodily harm which had just been angrily made were about to be executed? Was the threatened injury impending and about to fall? And did defendant fire the fatal shots because of this fear and to save himself from the threatened fate: or did he fire the shots maliciously? In the one case, he had the right to-fire; in the other, he did not. We think the testimony as to defendant’s appearance at the time he fired the shots has probative value in passing on that question. Appellant requested an instruction numbered 17, which told the jury that, in deciding the trim situation of the parties at the time their respective feelings and intentions, the jury should take into account “their threats, if any, and their relative strength and power, because, in a contest between a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discoverable.” It is very earnestly insisted that this instruction was proper, and that prejudicial error was committed in refusing it. We do not agree with counsel in this contention. The instruction was argumentative in form. It was, of course, proper for the jury to consider the circumstances there recited; but this court has said in many cases that it is not good practice to single out and specially direct the attention of the jury to particular circumstances, thereby appearing to emphasize the circumstances named. The jury should be directed to consider all the circumstances established by the testimony, and this was fully and clearly done in a number of instructions given by the court, several of which were given at the request of the defendant. We think there is no other error in the record; but the judgment must be reversed for the errors indicated. It is so ordered.

Smith, J. This is the second appeal in this case. The opinion on the former appeal is found in 140 Arkansas at page 487. As a result of that opinion, certain issues have passed out of the case. Appellant instituted the action to recover the sum due on a contract for the purchase price of certain articles sold and delivered to N. E. Montgomery, and against appellees, W. L. Warren and J. J. Hall, as sureties on the contract of Montgomery with appellant. At the trial from which the first appeal was prosecuted, the court took the case from the jury as to the liability of Hall, upon the ground that he had filed an affidavit denying the execution of the instrument sued on, and no testimony was offered that he had in fact signed the obligation. We reversed that judgment because the affidavit denying the execution of the obligation was not an unqualified denial as required by the statute, but was made merely on belief. Sec. 4114, C. & M. Digest. Upon the remand of the cause, such an affidavit as the statute required was filed, and as no evidence was offered contradicting the recitals of the affidavit denving the execution of the obligation, the court properly directed a verdict in Hall’s favor. Thereupon Warron the other surety, asked that a verdict be also directed in his favor, upon the ground that the discharge of Hall operated to materially alter the obligation and to discharge him also. This prayer was granted, and a verdict in War'ren’s favor was also directed, and the appellant seeks by this appeal to reverse the judgment of the court below as to both parties. We have just said that a verdict was properly directed in Hall’s favor. Must Warren be discharged from his liability on that account? There is an interesting discussion in the brief of appellee Warren of the difference in the obligations of sureties and guarantors, and it is earnestly insisted that Warren is a guarantor, and not a surety. We dispose of this contention by saying that the obligation signed by Warren designates him as a surety, and makes him such, and required him to sign expressly as a surety. Places were provided for the signatures and for the attestation of the signatures of the sureties. These sureties were designated first surety and second surety. Warren signed as first surety. There is no showing that he knew anything about who would be the additional surety, or whether any other person would sign as surety, except that there was a blank space for that purpose; nor was there any showing that his signature was conditional or, if so, that the condition was known to the obligee, the appellant medicine company; and so far as appellee Warren was concerned the obligation would have become a completed contract upon its delivery to, and acceptance by, the appellant, although no other person had signed as surety. Warren is liable, although the subsequent signature of Hall was a forgery, for appellant did not know tha+ such was the case. It received its first intimation that the signature of Hall was a forgery after it brought this suit to enforce the obligation; and, this being true, the rule would be the same, even though Hall had signed before Warren did. In the case of Wheeler v. Traders’ Deposit Bank, 55 S. W. 552, it was decided by the Court of Appeals of Kentucky (to quote the syllabus as it appears in the Southwestern Reporter) that “A surety in a note cannot escape liability on the ground that a signature which appeared to the note when he signed, and which he supposed to'be genuine, has turned out to be a forgery) as the fraud was practiced upon him by the principal, and not by the payee, who accepted the note supposing all the signatures to be genuine.” This case is extensively annotated in 49 L. R. A. 315, and the editor’s note ther'eto is as follows: “The main case, to the effect that one signing an obligation as surety guarantees the genuineness, of preceding signatures, is supported by nearly all of the cases. Those holding the contrary have either been repudiated in the States in which they were rendered, or were decided on the ground that the agent of obligee procured the signatures.” The cases cited in the notes to this annotated case are to the effect that one signing a contract as surety, so far as his own liability thereon is concerned, guarantees the genuineness of the signatures of all sureties whose names precede his own, and that regardless of the validity of the names following his own, unless his. own signature was obtained upon a condition not complied with known to the obligee at the time he accepted the contract. Our cases of Stiewel v. American Surety Co., 70 Ark. 512, and Wüliams v. Morris, 99 Ark. 319, do not decide this express point, but the reasoning of those cases is applicable here. In the first of these cases, this court held that misrepresentation made to induce a surety to sign a bond, if unknown to the obligee, would not defeat the right to recover against the surety. In the second case the court held that, where a surety signed a note as joint maker, and left it in- the hands of his principal, who procured it upon condition that it be first signed by a co-surety, but delivered it to the payee, who took it in good faith without notice of such agreement, the surety was bound for its payment. The insistence is renewed that Montgomery was the agent of appellant in the procurement of the signatures of Hall and Warren; but the opinion on the former appeal is against appellee in this contention. The judgment in favor of Hall will be affirmed; that in favor of Warren will be reversed, and the cause, as to him, remanded for a new trial.

Smith, J. Appellant was convicted for assault to kill, and has appealed. His defense is reflected in the only instruction which he asked, which was numbered 1 and reads as follows: “If you believe from the evidence that the defendant was at the home of Ray Causey at the time Charley Stokes was shot, the defendant can not be guilty of the crime as charged in the indictment, and you will acquit him. ’ ’ This instruction was refused, and an exception saved to that action, whereupon the court gave the following instruction numbered 12: “The defendant pleads an alibi in this case, which means that he was not present, at the time and place where and when the assault was committed as charged in the indictment. Therefore, if you should find from a preponderance of the evidence in the case that the defendant, Earl Trimble, was not present at the time and place where and when the assault was committed, if you find beyond a reasonable doubt that the assault was committed, if you find bevond a reasonable doubt that the same was committed from the facts and circumstances in proof, then such an alibi as set up and claimed by the defendant would be established, and it would be your duty to acquit him.” The original bill of exceptions does not show that an objection was made to this instruction, and we have before us now a bill of exceptions made on the hearing in the court below of a motion to amend the original bin of exceptions to show that an objection was in fact made to the instruction at the time it was given. According to the insistence of appellant, the instruction was given orally, and a general objection was made at the time, and later specific objections to the instruction were dictated to the court stenographer, but this occurred out of the presence and hearing of the court. Under the view most favorable to appellant, we have concluded that only a general objection was made to the instruction, if an objection was in fact made at all. It is further insisted that error was committed in admitting testimony in regard to appellant’s tracks. We perceive no reason why the court should have refused appellant’s instruction set out above. It presented concretely and correctly the law applicable to his defense, and was not more favorable to him than he was entitled to have the law declared. It stands as an undisputed fact in the case that if appellant was at the home of Ray Causey at the time the shots were fired, he could not be guilty of the crime charged, and the testimony in his behalf, if believed, established the fact that he was at Causey’s home at the time the shooting was shown to have occurred. Notwithstanding what we have just said, we have concluded that the refusal to give instruction numbered 1 and the giving of instruction No. 12, is not error calliim for the reversal of the judgment, even though a general objection may have been made to instruction No. 12. The instruction No. 12 told the jury that, if they should find, from a preponderance of the evidence, that appellant was not present at the time and place when and where the assault was committed, the alibi set up and claimed by him was established, and that it would be their duty to acquit him. It is true there appears in the instruction an unnecessary repetition; but this repetition resulted no doubt from the fact that the instruction was given orally. The better practice, of course, is to reduce the instructions to writing before giving them; but we have held that it is not reversible error to give an oral instruction, in the absence of a request that the instructions be reduced to writing. Mazzia v. State, 51 Ark. 177; National Lbr. Co. v. Snell, 47 Ark. 407; Anderson v. State, 34 Ark. 257; Merrill v. City of Van Buren, 125 Ark, 248; Reed v. Rogers, 134 Ark. 528. This repetition emphasizes the thought that the finding must be made beyond a reasonable doubt that an assault was committed, but it told the jury to acquit the defendant if his alibi was established, and it told the jury that the alibi was established if they found from a preponderance of the evidence' that appellant was not present at the time and place when and where the assault was committed. It is insisted that the instruction is bad under the decision in the case of Wells v. State, 102 Ark. 627. But we do not concur in this view. The instruction on the defense of alibi in that case told the jury to find the de-' fendant guilty if the evidence failed to establish the defense of alibi. The instruction under review does not contain that error. Neither does the instruction fall within the condemnation of the instruction given in the case of Haskins v. State, 148 Ark. 351. There the instruction told the jury that, if the 'evidence of an alibi did not cover the whole period of time during which the crime was committed, the jury should not consider any of it. In condemning that instruction, we there said it was the duty of the jury to acquit if the evidence upon the subject of an alibi, in connection with the other evidence in the case, raised a doubt as to the guilt of the accused. The defense of an alibi is an affirmative defense, yet if the testimony tending to sustain this defense suffices to raise in the minds of the jury a reasonable doubt of the guilt of the accused, he would be entitled to an acquittal. This is pointed out, and we think made clear, in the recent case of Woodall v. State, ante p. 394. We think the instruction now under review, when fairly interpreted, means that, if the appellant had established, by a preponderance of the evidence, that he was not present at the time and place when and where the assault was committed, his defense was established, and it would be the jury’s duty to acquit, and such was the effect of the instruction numbered 1 which he asked himself. In other words, the instruction given was as favorable as the one asked which was refused. His own instruction did not tell the jury to acquit if the evidence in support of an alibi raised a reasonable doubt about his guilt; and he made no objection that the instruction given was open to the same objection as was his own instruction; and we must therefore hold that the defect in the instruction given should have been called specifically to the attention of the court. As this was not done, no prejudicial error, of which appellant can now complain, was' committed. Stokes, the person assaulted, was permitted to testify, over appellant’s objection, that certain tracks which he found in his yard the next day after the shooting were the same tracks which he had followed around his field —these last being tracks admittedly made by appellant. The objection to the question is that it called for the opinion of the witness upon a subject upon which he had not shown himself qualified to testify as an expert. We do not think the objection well taken. Stokes had known appellant for ten years, and for the two years preceding the shooting they had lived on the same farm. He had frequently observed appellant’s tracks in the field and had noticed how he walked. He testified that appellant had a funny shaped foot, and he had frequently laughed about it, that his foot turned in and sets a little heavy on the inside. This was not a matter upon which only an expert could properly be allowed to testify. Upon the contrary, it is a matter about which a close observer could form an opinion without qualifying as an expert, and one of those things which could not be better reproduced or described than by comparing the track in question with the known tracks of appellant. Fort v. State, 52 Ark. 180; Brown v. State, 55 Ark. 593-599; Railway Co. v. Yarbrough, 56 Ark. 581; Miller v. State, 94 Ark. 538. No error appearing, judgment is affirmed.

Humphreys, J. Appellee instituted suit against appellants and Cinda Hall, the wife of John Hall, in the-Van Burén Chancery Court, to recover $3,300 alleged to have been received from Jasper Webb a short time before his death, for the purpose of distribution among his heirs after his death. In addition to alleging that the defendants, under a false claim of ownership, converted the money thus received to their own use, and that $1,000 of same was invested in bant stock, which they were about to sell to innocent purchasers, and that they were insolvent, and that appellee was without any adequate remedy at law, the bill contained the following allegation-. “That the deceased was so weak in mind and body that he was incapacitated and unable to look after his business or financial interests and affairs; that he reposed absolute and explicit faith and confidence in the defendants ; that the defendants, taking advantage of said faith and trust so reposed in them, and taking advantage of their relationship to the deceased, with the fraudulent intent, purpose and design to obtain possession of his property, overreached him and misled and deceived him, and falsely and fraudulently represented to him that, if he would turn over and deliver to them his money and other personal effects, they would care for same, and would correctly distribute same in the event of his death. That, relying upon said promises and representations so made to deceased by defendants, he delivered to them as trustees and fiduciaries for safe-keeping the sum of $3,300 to be by them taken care of for him. ’ ’ The prayer of the bill sou.g’ht in substance to hold tlie defendants as trustees of the funds received and to enjoin a transfer of the stock and the expenditure- of the fund. To this bill, appellants and Cinda Hall filed a motion to transfer the cause to the circuit court, and a demurrer challenging the jurisdiction of the chancery court, and, without waiving their rights under the demurrer, answered, denying the material allegations of the bill and alleging that the moneys received were gifts to the appellants. The cause was heard upon the pleadings and evidence adduced, which resulted in a decree overruling the demurrer and the motion to transfer to the circuit court and the dismissal of the bill against Cinda Hall for the want of equity, and in a finding that appellants received $1,450 belonging to the estate of Jasper Webb, deceased, out of which sum $874.41 had been invested in fifteen shares of bank stock in the Bank of Scotland, Arkansas, owned at the time of the rendition of the judgment by T. S. Hall, and that appellee should have a lien declared thereon for said amount. Judgment was rendered in accordance with the findings, from which an appeal has been duly prosecuted to this court, and the cause is here for trial de novo. Jasper Webb, who had resided in California from young manhood until a few weeks before his death, informed John Hall, a nephew by marriage, by letter, that he had sold his farm, was in poor health and would like to spend his remaining days in Arkansas if he could come or send for him. He enclosed in the letter $500 for the Jeff Webb family, consisting of five persons, with directions that John Hall see that each received his respective share. This money was divided as directed. In response to John Hall’s nest letter, the following letter was written by Jasper Webb to him: “Springville, Cal., Aug. 24, 1919. “Mr. John Hall, “Scotland, Arkansas. “Dear Nephew: Tour letter to hand .found me still improving some in, health but slowly. I guess I shouldn’t complain for a man 84 years old. I hope these few lines will find you well. You said you was not able to make the trip, but would send after me if I wanted to come and live with you the rest of my days. I written you before that I have sold my little farm and reserved a right to live on it as long as I wanted to, but now if you will be kind enough to come or send after me and take care of me the rest of my days which I am sure are but few, you shall have what little I have got. It is not much, but enough to do us a while. So let me hear from you soon. “Your uncle, “Jasper Webb.” T. S. Hall, a son of John Hall, went to' California soon after the receipt of the last letter to bring his great uncle to Scotland, Arkansas, where John Hall resided and conducted a hotel. One witness testified that T. S. Hall told him that Jasper Webb sent him $100 to pay his way to California. T. S. Hall denied that he made the statement. John and T. S. Hall testified that T. S. Hall took $400 of John Hall’s money to California for the purpose of paying the return expenses of Hall and Webb if needed, and, if not needed, to convert it into gold and bring it back. T. S. Hall testified that, after reaching California, Jasper Webb made him a present in all of about $450; that, when he started back, Jasper Webb purchased a draft payable to himself for $1,000, being all the money he had except expense money for the return trip; that he, Hall, purchased a draft for $800, payable to himself; that, in the purchase of the draft, he used his own money and $400 that his father had given him before he left for California; that the expense of the return trip was borne largely by his uncle and partly by himself; that, after his return, his uncle indorsed the $1,000 draft and he placed it, together with the $800 draft, to his personal credit in the Scotland bank and gave his uncle $1,000 in cash, which he gave to his father, John Hall, for taking care of him the rest of his life. John Hall testified he gave him $40 at one time, $80 at another, and the balance of the thousand at another, for agreeing to take care of him the rest of his life; that he had expended practically all the money at the time he testified, and was unable to give any itemized account of the expenditures. Webb and Hall reached Scotland about September 19. Webb went at once to the hotel conducted by John and Cinda Hall, and, after a short illness, died on October 14, 1919. On October 27 thereafter, Dr. Hatchett transferred ten shares of the bank stock to T. S. Hall and five, shares to John and Cinda Hall jointly; that the stock was paid for by a check in the sum of $1,175, drawn by T. S. Hall on his account; that in the latter part of the year 1919, John and Cinda Hall transferred the five shares of stock, which had been transferred to them jointly, to T. S. Hall. J. H. Lindsey testified that, on September 26, 1919, T. S. Hall deposited $1,970, of which the two California drafts represented $1,800; that, on October 27, 1919, the account had been reduced down to $874.40; that, on that day, Hall deposited $379, and the bank paid his cheek to Dr. Hatchett of $1,175 for the fifteen shares of stock. Also that T. S. Hall asked him whether he could deposit $1,500 in gold in the bank and receive it back in gold a short time after he returned from California. Ho was informed that he could. R. W. Hall, an uncle of T. S. Hall, testified that, soon after returning from California, he told him his Uncle Jasper was fee'ble, and that when starting he forgot $750 in gold that was hidden in the stove-wood box and went back and got it. Dr. Hatchett testified that John Hall came to him the evening he agreed to sell fifteen shares of stock in the bank to T. S. Hall for $1,175 and wanted to know what one-third of $1,175 was, without explaining why he wanted to know. John Hall, Cinda Hall and T. S. Hall all testified that one-third, or five shares, of the stock was sold by T. S. Hall to his mother for cash, but none of them could explain why the five shares were transferred to John and Cinda Hall jointly, or why later in the year it was transferred to T. S. Hall, except that Cinda Hall got tired of ' owning the stock. T. S. Hall testified that he had paid a portion of the $1,800 out and borrowed $750 from Cleve Hall to aid in the purchase of the fifteen shares of bank stock, and also got $500 from his mother for the same purpose; that he did not put a cent of the old man’s money in the stock. Cleve Hall testified that he loaned Ms brother, T. S. Hall, $750 about that time and produced the note which was given to him. W. O. Rutherford, a neighbor of Jasper Webb, Sr., for years in California, testified that he purchased his farm in 1919 for $1,750; that $500 of the money was sent to John Hall for the Webb heirs, and $1,000 was used to purchase the $1,000 draft which he took to Arkansas with him; that he believed Webb had about $800 at home in addition to that amount. Jasper Webb, Jr., a nephew of Jasper Webb, Sr., and brother to Cinda Hall, testified that his uncle told him he had given his money to no one about a week before his death; that, while they were talking, Cinda Hall came to the door and said, “I wish you would not bother our old uncle. ’ ’ Cinda Hall denied making the statement. N. A. Simpson, brother-in-law of T. S. Hall, testified that he sent a car to Morrilton for Hall and Webb when they returned to Scotland; that, when they reached Scotland, T. S. Hall offered to pay him ’; he inquired what luck he had on the trip, and Hall showed him some gold and other money in Ms pocketbook. T. S. Hall denied bringing any gold back with him from California, but testified that, if he showed Simpson any, it was what had been taken in at the store in his absence. Clara Webb, wife of 'appellee, testified that, on Sunday before Jasper Webb, Sr., died, she heard him ask T. S. Hall for his money, and T. S. Hall answered: “I am keeping it, You don’t need it;” that he asked for Ms money a second time and received the same answer; that she went to the kitchen and told Cinda Hall what occurred in her hearing; that Cinda Hall said T. S. Hall had a part of the money and went to the room and stopped the conversation. John Hall, Cinda Hall and T. S. Hall denied the conversation, or that Clara Webb was at the Hall home that day. Judge and Mrs. Griggs both testified that she and T. S. Hall were there on the day mentioned. Mrs. Lindsey testified that Clara Webb told her of the occurrence the day Jasper Webb died. Sallie Simpson testified that she was at the home of John and Cinda Hall the Sunday when Clara Webb was there; that Clara Webb was there, but was on the front porch next to town and remained there not more than ten minutes; that she had a talk with Jasper Webb, who said he had some money, that he had divided all except enough to do him while he lived; he said, “T. S. Hall was going to be paid for his trouble in going after him, and the rest to my papa and mamma for keeping him; and this conversation was about a week after Jasper Webb came. W. J. Watson testified that Jasper Webb, Sr., told him that he aimed for John Hall to have his money for taking care of him. Cleve Webb testified that John Hall told him there would be $900 or $1,000 left by deceased after payment of expenses, and that, if each of the others would turn back the $100 received by them before Webb left California, he would be willing to divide the whole sum equally. John Hall denied making the statement. Rice Webb, father of the appellee and nephew of Jasper Webb, Sr., testified in substance, as follows: Came to see his uncle at the home of John and Cinda Hall and spent a week with them. Was told by deceased that he had deposited with the ¡Bank of Scotland a draft in the amount of about $1,500, and that T. S. Hall had in his possession $1,200 or $1,500 in gold belonging to him, the deceased. Deceased desired witness to take charge of and wind up the estate; wanted his property divided equally among his heirs. Deceased asked T. S. Hall why he did not put his money in the bank. T. S. Hall replied that it was all right any way. The attitude and conduct of defendant, Cinda Hall, his sister, was resentful and unfriendly toward him. She seemed to resent his talking to his uncle, and her actions made him feel that he was not wanted at her home. No one was present while he was talking with Jasper Webb. He would not talk if any one came in while he was talking to him. Admitted that he later wrote to John Hall the letter exhibited with his deposition in which he said that the deceased had told him that he had in the bank at Scotland $1,000 and that T. S. Hall had $1,000 in gold of his. After the death of Jasper Webb, Sr., two letters were written to inquiring relatives by T. S. Hall, one was written for his father and the other at the instance of his father with directions to sign his mother’s name to it. His mother, Cinda Hall, testified that she did not know of or authorize the letter. He explained that he had not written either letter as his father intended. In further explanation he said: “Well, the way I understood the last one — I am not quite sure now, but I think he was there and had me to write it — the first one I know he was not there, and I must have wrote it sort of by guess work and signed mother’s name to it after he had told me what to write.” In further explanation, he said: “Papa came in one day when I was putting up the mail. I had my mind on my own business while he was telling' me something like this to write to Manda Ellis — to write her that the old man was dead, and that he would not have anything left counting anything for his expenses and trouble and for his mother’s and his tombstone it would leave him in the hole something like $25. So after he had gone out, or sometime during the day, I happened to have time and thought about it so I written about what I could think of. But he told me later I did not write it like he intended.” The letters are as follows: “Scotland, Ark., October 22, 1919. “Manda Ellis, Spiro, Oklahoma. “Dear Sis: I reply to your letter. Uncle Jasper died 14th of October. You said something about coming. If you wanted to come, why didn’t you come while he was living? We paid all expenses while he was sick and burial expenses and had to pay $25 out of our own money, and would like if you all are willing to help me make this amount up. It wouldn’t be much apiece. He had nothing but what he sent in, and that was what we done and give you all. “Your sis, “Cinda Hall.” “Scotland, Ark., Nov. 1, 1919. “Mr. Eice Webb. “Dear Brother: Cleve (Webb) told me you wrote him and wanted to know about Uncle Jasper’s money. Never had very much; so I would write you the truth about it as I have heard so much about it first one way and then another. You know a man can hear anything now. I know all about his money, and will tell you the truth about it, as I don’t want anything that don’t belong to me. After paying expenses and doctor bill and burial expenses, he had one hundred and sixty-two dollars left, and I bought your mamma and him a tombstone apiece. So I thought that would be best to do with that little amount of money, as it wouldn’t be much apiece. And Cleve said that would be what he would do with it if he was me, so I done so. My wife said you wanted a pair of his glasses. Write me the kind of case they was in and I will send them to you by mail. All well. It rains here every daju Write me a long letter when you have time. “Yours, “John Hall.” Appellant first insists that tbe court erred in overruling the demurrer and refusing to transfer the cause to the circuit court. We can not agree with this contention. The gist of the bill, according to its salient allegations, was to regulate and enforce a trust fund which had been and was being diverted and misappropriated without a complete and adequate remedy at law to prevent dissipation of the fund. The allegations state a cause of action peculiarly within the powers of courts of equity to examine. 25 C. J. 116-117. It was said by this court in Spradling v. Spradling, 101 Ark. 451, that “courts of equity have inherent and exclusive jurisdiction over all kinds of trusts and trustees. They have full and complete jurisdiction of trusts independently of statute, whether the same arise by express declaration and agreement, or result by implication of law. The court therefore did not err in overruling the demurrer to the complaint. ’ ’ The next contention of appellant is that the decree of the court is against the clear preponderance of the evidence. The evidence is quite voluminous; hence we have only attempted to summarize it. An extended written analysis of it could serve no useful purpose. Our conclusion, after a careful reading and analysis of the evidence, is that Jasper Webb, Sr., had about $1,800 when he left California for Arkansas; that it was his intention to pay the necessary expenses incident to his removal to Arkansas and to give John Hall the balance for taking care of him the rest of his life. This was indicated in his first two letters; also indicated after reaching Arkansas by statements made to Sallie Simpson and W. J. Watson. This intention, thus expressed is the only circumstance in the record tending to corroborate the evidence of the appellants to the effect that the gift was consummated. All other statements made by Jasper Webb, Sr., to other witnesses tended to show that he changed his mind, and that the gift he intended to make was never consummated. Practically every statement and act of John, Cinda and T. S. Hall during the illness and for a time after the death of Jasper Webb, Sr., indicate that he never gave any money to appellants. We can not reconcile a bona fide gift with the attempt at secrecy on the part of the Halls concerning the amount received and the disposition made of it. The two letters written to relatives by T. S. Hall, concerning the money of deceased and the disposition thereof, not only conflict with each other bnt both abound in untruths concerning the amount of the money the deceased had before he started to Arkansas and the disposition made of it. The impression intended to be conveyed by the letters was that the $500 sent from California and divided between the heirs absorbed all the assets of the deceased. The letters were evidently written to forestall or prevent an inquiry as to the disposition of about $1,800 which had been reserved by Jasper Webb, Sr., at the time he sent the $500 to the heirs. The explanation attempted for writing these letters simply makes a bad matter worse, for they do not explain. We can not say the chancellor’s finding against the gift was contrary to a clear preponderance of the evidence. It. is practically undisputed that at least $1,000 of deceased’s money was deposited to the individual account of T. S. Hall in the Scotland Bank in September, and that the account had not been reduced below $874.45 up to and including the time a check for $1,175 was given to Dr. J. K. Hatchett in payment of fifteen shares of stock. That check absorbed the balance and all of an additional deposit made on that day, except $96.41. The court did not err in declaring the balance on that day the property of the estate of the deceased, as it will be presumed that Hall checked prior to that time, against his individual funds and not against the trust funds. Nor did the court err, as contended, in declaring a lien upon the stock for the trust fund and making an order to sell the stock to satisfy the lien. To have simply impounded and delivered the stock to the administrator would have forced him to accept stock in lieu of his judgment, which might have been of less value than the judgment. The declaration of a lien and order of sale was in effect a foreclosure, cognizable in a court of equity and not within the exclusive jurisdiction of a probate court, as suggested by appellants. The last contention of appellants is that the court erred in rendering a joint judgment against appellants. The allegations of the bill in effect charge a conspiracy against appellants to divert the trust fund, and the allegations are fully sustained by the evidence. Under the theory and proof of a conspiracy, it was proper to render a joint judgment against the appellants. No error appearing, the judgment is affirmed.

Smith, J. The case of Epperson v. Helbron, 145 Ark. 566, appears to have been brought as a test case to determine whether the lease therein sought to be canceled, as well as numerous other similar leases, had been forfeited because of the lessees’ failure to develop the oil and gas fields as contemplated by the leases. These leases were for a term of .years and stipulated for a division of the oil and gas which might be found. There was a stipulation in all these leases that, if no well was completed within one year from the date of the lease, the lease should be void unless the lessee should pay a stipulated rental annually after the expiration of the first year. The rental had not been so paid, and we held in the case cited that, upon the failure to pay in advance, the lease became void, although it was not provided in the lease that the rent •should be paid in advance, distinguishing, in this respect, between exploration contracts for oil and gas and the ordinary leases for mere use and occupancy of land. These leases were made to IT. EL Givan, and among other lessors were S. W. Kennedy and Lizzie E. Kennedy, his wife. Kennedy’s lease was dated November 29, 1918; the first year was out November 29, 1919, and notice of forfeiture was given by Kennedy on April 19, 1920. It appears that in March, 1920, Kennedy and numerous other persons who had given Givan leases were solicited by one Westmoreland, on behalf of M. EE. Straughan, to execute new leases to Straughan. These leases provided that the lessor should bring suit to cancel the lease previously given to Givan,’ and that the expense of the lawsuit should be paid by Straughan, and that Straughan would make a payment of 75 cents for each acre covered by the lease within thirty days after the Grivan lease had been declared forfeited by the court in which the suit to cancel had been brought. The explanation of these contracts with Straughan is that, after obtaining leases, Grivan would neither pay rentals nor develop the land, and that Straughan was willing to lease and develop the land, but was not willing to do so until the validity of the Grivan leases had been determined. About sixty persons, who had given leases to Grivan, signed contracts with Straughan as set out above at the solicitation of Westmoreland, and about a month later suit was filed to cancel each of the Grivan leases, the suit of appellee being among that number. After the institution of these suits, G-ivan assigned certain of these leases to the appellant Heyden. There was an agreed statement of facts in which it was stipulated as follows: “That on the land pf E. O. Westmoreland there has been erected a derrick by Givan for the purpose of drilling for oil. That said derrick was erected by Givan after the lease referred to and completed before the forfeiture was declared. But no further work was done towards drilling a well after September 1, 1919, and no well was drilled nor ore mined on the land within the year mentioned in the lease, and no effort has been made since to drill a well on said land of plaintiff. “That E. O. Westmoreland is one of. about fifty plaintiffs bringing suit to cancel leases given to Givan and is the same E. O. Westmoreland, who entered into a contract with M. H. Straughan to secure the bringing of suits, and the leases to Straughan. “That no demand was made by the plaintiffs for these rentals at any time. No notice was given that plaintiffs would demand renewals in advance. “That at the time of said suit no'oil or gas had been discovered in Nevada County. ‘ ‘ That no. rentals were tendered until after the bringing of this suit, and such tender was then refused.” The court found, from the pleadings and exhibits and the agreed statement of facts, that “neither defendant H. IT. Grivan, nor any one for him, began a well upon said land (Kennedy’s land) within the time limited in said lease, and that he wholly failed to pay the rentals therein, and that on the 19th day of April, 1920, plaintiffs notified the defendant IT. H. Grivan that no well had been commenced, and no payment of rental made, that said lease was void.” The court declared the law to be that, as no well was completed upon said land, the payment of rentals to prevent the forfeiture of said lease should have been made in advance, and that, as no such payment was made, said lease was void as far as the same applied to the lands now claimed by the defendants Given et al., and that said lease should be canceled and set aside. The court thereupon adjudged the lease from Kennedy to Givan to be void and canceled it, and this appeal is from that decree. For the reversal of this decree it is insisted that the contract, of which Straughan was the beneficiary, was one for champerty and maintenance and was therefore contrary to public policy and void, and that the court should not, for that reason, lend aid to its enforcement, and that the suit of Kennedy should not therefore be entertained by the courts of this State, and a nonsuit should be ordered.' A similar contention was made in the case of Proshy v. Clark, which was decided by the Supreme Court of Nevada (32 Nev. 441, 109 Pac. 793). This is a well-considered case, and the opinion was based upon the consideration of numerous authorities there cited. The court held (to quote the syllabus): “A nonsuit cannot be granted in an action brought to recover possession of a contract interest in mining claims, because the owner of the interest had made a champertous assign ment of a portion of such interest to one who joined in the action, since defendants cannot táke advantage of the champerty, and, even though the partial assignment might be void, it will not defeat all right of recovery against defendants.” This case is annotated in 35 L. R. A. (N. S.) 512, where the editor’s note reads as follows: “It is the general rule that a third person may not take advantage of champerty as against the original owner of the cause of action. This is upon the theory that the cause of action does not in any way rest or depend upon the ehampertous agreement.” A very large number of cases are cited in support of this' note, and, among others, is the case of Burnes v. Scott, 117 U. S. 582, where it was held that the making of a ehampertous, and -therefore under the law of the State void and illegal, contract for the prosecution of .a suit to collect a promissory note cannot be set up in bal of a recovery on the note. In the opinion by Justice Wood it was said that the conclusion just stated was reached both upon reason and weight of authority, and that only two cases — and both of them by the Supreme Court of Wisconsin — had been found holding to the contrary. So, we conclude here that, whether the contract between Kennedy and Straughan be ehampertous and void or not, that fact cannot be set up in bar of the right of Kennedy to sue on a cause of action to which" the alleged ehampertous contract relates, for the reason that his cause of action does not in any way rest or depend upon his contract with Straughan. Decree affirmed.

Hast, J. Huel Smith prosecutes this appeal to reverse a judgment of conviction against him for the crime of assault with intent to rape. Smith was indicted for the crime of assault with intent to rape, and was convicted of the crime, his punishment being fixed by the jury at a term of three years in the State penitentiary. The first assignment of error is that the judgment should be reversed because the court refused to instruct the jury on the lower offenses embraced in the indictment. The defendant was indicted for the crime of assault . with intent to commit a rape, and the court fully and fairly instructed the jury on that phase of the case. The court, however, refused to instruct the jury on the crime of simple assault. The prosecuting witness was between eighteen and nineteen years of age at the time the offense is charged to have been committed. According to her testimony, she was well acquainted with the defendant, and went buggy riding with him on the night in question. The defendant first put his arms around her against Her will and rode in that position- for some distance. She would scream for help when they passed houses, but failed to attract the attention of any one. Finally the defendant stopped the horse, wrapped the buggy lines around the whip, and told her that he intended to have intercourse with her. She resisted him with all her power. He took both of her hands in one of his, pressed her down on the buggy seat, struck her on the face and neck and forced her to yield to his embraces. She resisted him in every man'ner possible. The defendant then proceeded to drive on, and presently she dropped her handkerchief out of the buggy. She asked the defendant to get out of the buggy to get the handkerchief, and, when he did so, the prosecuting witness whipped up the horse and left him. The horse in turning a corner overturned the buggy. The prosecuting witness then scrambled out and went for assistance to a nearby house. In a short time the defendant came there and asked if she wanted to go home with him. She refused to go and telephoned for her relatives to come or send for her. She reported the fact of the assault as soon as she reached the house. The defendant admitted that he had intercourse with the prosecuting witness on the night in question, but claimed that it was with her consent. He described in detail their- conversation -during the ride, and said that there was no resistance whatever on the part of the prosecuting witness. Under this state of the record, we think the court erred in refusing to give the instruction. This is not a case where the undisputed evidence shows that the defendant was guilty of the crime of assault with intent to rape or nothing, and the ease does not come within the rule announced in Rogers v. State, 136 Ark. 161. The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. According to the testimony of the prosecuting witness, the defendant first put his arms around her and held them there while they rode for some distance, although she screamed for help whenever they passed a house. The defendant did not deny putting his arms around the prose^ cuting witness, but said that she consented thereto. This action of the defendant, as testified to by the prosecuting witness, constituted a simple assault and would warrant the jury in finding him guilty of that offense if it should not believe the subsequent testimony of the prosecuting witness to the effect that the defendant had connection with her forcibly and against her will. As we have already seen, the jury were the judges of the credibility of the witnesses and might have believed all, or a part of, the testimony of either witness. They might have believed that, under the testimony of the prosecuting witness and of the defendant himself, the latter was guilty of the crime of simple assault, and that he was not guilty of the graver offense. In any event, the defendant had the right to have his theory of the case submitted to the jury; for it cannot be said that the undisputed evidence showed that he was guilty of assault with intent to rape or nothing. Allison v. State, 74 Ark. 444; Bruder v State, 110 Ark. 402; and Hankins v. State, 103 Ark. 28. It is next insisted that the judgment should be reversed because the trial court erred in permitting the’ State to introduce testimony tending to show the good character of the prosecuting witness for chastity, over his objections. ■ We think counsel for the defendant is correct in this contention. In a prosecution for assault with an intent to rape, the character for chastity of the injured -party may be impeached, not to justify or excuse the offense, but to raise a presumption of her consent. Pleasant v. State, 15 Ark. 624, and Jackson v. State, 92 Ark. 71. It is only when the accused attacks the chastity of the prosecuting witness by evidence of reputation for unchastity that the prosecution may introduce evidence of her reputation for chastity to discredit such testimony. Under-hill on Criminal Evidence (2nd Ed.) § '418, p. 702. In the present case the defendant did not introduce any evidence as to the reputation of the prosecuting witness for unchastity, or of illicit intercourse on her part. Hence the court erred in admitting the State to prove the reputation of the witness for chastity because her reputation in that respect had not been assailed by the defendant. It is also insisted that the court erred in permitting to go to the jury the record of the testimony of an absent witness for the State on the examining trial of the defendant. We need not consider this assignment of error. The record shows that the witness was only temporarily ill, -and the question will not likely arise on the retrial of the case. For the errors in the opinion, the judgment must be reversed and the cause remanded for a new trial.

Smith, J. Appellee Barnett instituted two suits against appellant Mays (who was doing business .under the name of Mays Manufacturing Company and will be hereinafter referred to as Mays), which were consolidated and tried as a single suit. The first was a suit in replevin for a street light serial and a switch board of the value of $345. The second suit was one to recover the value of certain electric light poles and certain fixtures, tools, and other appliances which had been used in connection with the electric light plant in the city of Leslie, Arkansas, which Barnett claimed he had bought from Mays, but which Mays had refused to deliver. The value of the articles thus sued for was alleged to be $205, and, in addition, judgment was prayed for in the sum of $154.30, for advances on meters furnished by Mays to patrons of the light plant during the time Mays ran it. The facts in regard to the advances on the meters'need not be stated, as liability for this item was not denied. The answer filed denied Barnett’s ownership of the property sued for, and alleged the fact to be that Barnett had wrongfully taken possession of certain fixtures, and judgment for the value thereof was prayed, with damages for their usable value. The decree was in favor of Barnett on all the issues raised except that the court gave judgment against him for $95, this being the value of certain meters taken from the warehouse' of Mays and which the- court found were the property of Mays, and there has been no cross-appeal by Barnett from that finding. The main controversy in the case is over1 what is called the street light serial and switch board, and what we shall say in regard to these two articles will be decisive of the ownership of the other articles sued for. On July 23, 1920, Mays sold to Barnett the electric light plant in the city of Leslie, and executed a bill of sale therefor, which reads as follows: “BILL OF SALE. “This bill of sale, made on the 23rd day of July, A. D., 1920, by and between Ed Mays (Mays Mfg. Co.) of Leslie, Arkansas, as grantor, and A. L. Barnett, of Leslie, Arkansas, as grantee. “Witnesseth, that the said grantor, in consideration of the sum of $4,000 to me paid, the receipt of which is hereby acknowledged, does hereby sell, assign, transfer, set over and deliver unto the said grantee the following described personal property, to wit: all electric light poles on streets and alleys of Leslie, Ark., and all wire and electric light fixtures on and between said poles (including all transformers, street light fixtures), and in addition thereto all meters that are in resident and business houses in Leslie, Ark. I am selling the meters outright and agree to make proper adjustments or refunds to customers. “To have and to hold said personal property unto said grantee and unto his heirs, executors, administrators and assigns forever. The said grantor covenants that said property is free from incumbrance, and that he has the lawful right to sell and dispose of the same; and that he will warrant and defend the title thereto against all claims whomsoever. “In witness whereof, I have hereunto set my hand and seal this the 23rd day of July, 1920. “Mays Meg. Go., “By Ed Mays, “En. Mays.” Barnett contends that the property sued for was conveyed by this instrument; but this is denied by Mays; and the decision of the point in controversy depends on the construction given this instrument. It is the contention of Mays that the bill of sale is plain and unambiguous, and that it would offend against the rule which makes parol testimony inadmissible to contradict or vary the terms of a valid written instrument to admit or consider testimony in explanation of this contract. The portion of the bill of sale said to be ambiguous is the phrase, “including all transformers, street light fixtures” included within the parentheses. It is the contention of Mays that this phrase is one of explanation, and does not enlarge the conveyance, and was intended to limit the fixtures and transformers conveyed to those in use at the poles, between the poles, and within the corporate limits of the city of Leslie, and that the contract, if properly construed, would read: “All electric light poles on streets and alleys of Leslie, Arkansas, and all wire and electric light fixtures on and between said poles, including all transformers ,and street light fixtures between said poles.” If the contract were so construed, Barnett cannot recover in this action. But we are by no means certain that this is the necessary or proper construction of the language in question. Upon the contrary, we have concluded that the phrase quoted is an ambiguous one, and that the court below properly admitted and considered parol testimony showing the relative situation of the parties in determining the meaning of that phrase. The rule in such cases is clearly stated in the case of Boden v. Maher, 105 Wis. 539; 81 N. W. 661; 32 L. R. A. (N. S.) 389, from which we quoted in the case of Brown & Hackney v. Daubs, 139 Ark. 53, as follows: “Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it is quite another thing. The former is not permissible. * * * ’ . The latter is permissible, and is often absolutely essential to show the real nature of the agreement. * ■ * * Both rules are elementary, and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence, either in regard to what was said at the time it was made or prior thereto; the other aids in determining what the contract is when its language, either in its literal sense or as applied to the fact, is obscure. The one is a rule to preserve the contract as expressed in writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meaning of the language they chose to express it; and that rules of construction to discover it are not to be resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction often leads to error.” See, also, Stoops v. Bank of Brinkley, 146 Ark. 127; N. Y. Life Ins. Co. v. Allen, 143 Ark. 143; Ellege v. Henderson, 142 Ark. 421; Goodwin v. Baker, 129 Ark. 513; Livingston v. Pugsley, 124 Ark. 432; Arlington Hotel Co. v. Rector, 124 Ark. 90; Wood v. Kelsey, 90 Ark. 272. Applying this rule- in the interpretation of the language of this contract, we find the following facts established by the testimony. Mays had operated a light plant in the city of Leslie, all of which was owned by him except a dynamo,, but had ceased to operate the plant, and his franchise had been declared forfeited both by the city council and the State Corporation Commission. The city was without lights. Mays owned certain manufacturing-plants, and was using- the power plant and dynamo and the wires between his roller mill and’ two other mills known as the Lenker mill and the Perkin mill in the operation of those plants. Mays had no use for the machinery or lighting system except the dynamos and the poles and wires between the manufacturing plants above mentioned, and he had been ordered to remove all poles, wires, and fixtures of every nature from the streets of the city. The citizens of the town were anxious to have the light plant operated, and as a means to that end were endeavoring to induce Barnett to- buy it. Two of these citizens, David Cotton and Dr. Fendley, became quite active in promoting that object. Mays prepared a complete inventory of the light-plant, which showed the cost thereof to him to have been $6,951.67. This inventory was submitted, to Barnett, who had the same checked over to ascertain whether it constituted a complete lighting system. Upon being- advised that it did, he submitted to Mays the following offer in writing: “Leslie,' Ark., July 22, 1920. “Mays Mfg. Co., Ed Mays, City: “Dear Sir: After making a survey of your lighting system within the corporate limits of Leslie, and after due consideration of the matter, I have made up my mind that I will give you $4,000 for the entire system covering all the town, that is within the limits of the incorporated city of Leslie, Chandler & Griffin addition included. “The above offer is for all the poles, wiring, meters, transformers and street lights, etc., and under the conditions that you turn same over to me and agree not to obstruct me in any way in carrying on the business of a public utility here in the city of Leslie, Arkansas, you to pay consumers back amount they had advanced on meters. “I feel that the above offer is really more than the system is worth, but the town needs the system in operation immediately, therefore I make you this offer under the conditions as above stated, and this is all that I will give you. “So please give me an immediate answer, as I desire to know at the earliest possible moment. ‘ ‘ Respectfully submitted, “A. L. Barnett.” On the same day Mays made the following reply in writing: “Leslie, Ark., July 22, 1920. “Mr. A. L. Barnett, City. “Dear Sir: Referring to your letter of even date, I will accept $4,000 for our electric light wiring system in Leslie, to include the main part of Leslie, but I reserve that part of the system which I am now using in my manufacturing business, which is the line and poles beginning at our flour mill and runs by way of our Lenker plant to include our Pekin plant. You appreciate the fact, should we sell these poles and wires that we are excluding from the sale, we would not have same under, our control any longer, and therefore it might mean the shutting down of our plants. Anyway we need that part of the system which we have excluded from the deal in our manufacturing business. You want to appreciate the fact that we are not in the light business for the public, nor could we engage in the public utility work without a permit from the Corporation Commission, and that we have no intention of ever being in the light business for the public in Leslie any more. You understand that we are selling you all the meters in Leslie that are now ¡being used in our system, and that we are to take care of all refunds to customers. I understand you have checked up this wiring system of ours and fully understand what you are buying. ‘ ‘ If you wish, to accept our offer, please advise us today, and we will prepare a bill of sale and consummate the deal today. “Yours very truly, “Mays Manufacturing Company, “Per Ed Mays.” The negotiations proceeded no further until Cotton and Pendley became active. These gentlemen were' not the agents in fact of either Mays or Barnett, yet in a sense they acted for both parties by carrying the messages between.them whereby the deal was finally closed. Barnett was asked who Dr. Pendley represented, and answered, “He came there (to Barnett’s place of business) for Mr. Mays. I was going to tell you what he said. Mr. Mays sent him, for he said, ‘Mr. Mays wants to know if you will give him $3,800, and let him keep those wires.’ ” Barnett answered, “No, I won’t have anything to do with the plant unless I get it all.” This message was immediately communicated to Mays bv Cotton and Pendley, who returned in about an hour with the bill of sale. Upon reading it over, Barnett said, “This could have been made a little plainer.” But Pendley said he would guaranty that “everything goes now.” Mays testified that when Pendley and Cotton came to him he insisted that a bill of sale be written, so that no controversy would arise over the articles sold, and that he therein specified all that was sold, and that the writing does not include the articles in controversy, because they were not between any of the poles of the system, and, as has been said, this is true if the contract is read as thus limiting the fixtures sold. . Pendley and Cotton both testified that- when they reported to Mays that the counter-proposition contained in his letter to Barnett had been rejected by Barnett, and that Barnett would not entertain any proposition except upon the basis stated in his letter to Mays, that Mays finally said, “I’ll trade. I’ll .take it.” And when Mays drew up the bill of sale,' and when he had finished it asked, “Is that full enough, or does that cover everything- satisfactorily?” they thought it did, and repeated the conversation to Barnett. Upon delivering the bill of sale to Barnett, which they did, they received from Barnett a check for $4,000, which they immediately delivered to Mays. We think that, once we have considered the testimony showing the situation of the parties at the time of the execution of the bill of sale, it clearly appears that Barnett intended to buy all the property included in the invoice submitted to him, and that Mays knew that Barnett so understood the bill of sale, and when he accepted the check the deal was consummated on that basis. The street lights could not be operated with-, out the street light serial and switch board, and they will, therefore, be held to be included in the term, ‘ ‘ street light fixtures, ’ ’ although they were not on or between the poles. The court below so found and decreed accordingly, and, as we concur in that finding, the decree will be affirmed.

Hart, J. Ransom Lambdin was indicted on March 3, 1921, charged with the crime of manufacturing and of being interested in the manufacture of vinous, malt, spirituous, alcoholic, and fermented liquors. He was tried before a jury and convicted, Ms punishment being fixed at one year in the State penitentiary. From the judgment of conviction the defendant has duly prosecuted an appeal to this court. The first assignment' of error is that the evidence is not legally sufficient to support the verdict. Ed F. McDonald, sheriff of Grant County, Ark., was the principal witness for the State. According to his testimony, in company with several other parties he located a still on the farm of the defendant Ransom Lambdin, about a week before he arrested him. It looked like the still had been operated at that place about two months. It was inside the defendant’s field about one-quarter of a mile from his house. On the 18th day of January, 1921, the sheriff and others went back there to arrest the defendant. They found that the still had been moved, and tracked the parties moving it across the field of the defendant towards Ms house. They found the §till located in a dense thicket about 100 yards from the defendant’s house. There was a pit dug in the ground, and two 60-gallon barrels of mash, which were ready to be run off, were placed on the covering of the pit. They found an oil stove burning in the pit between the barrels. There was a place near the still where they had been getting water. While watching this place, they saw a son of the defendant come down to the still from the defendant’s house carrying something in his hand. He then went back to the house. There was a small path leading from the still to the house. They found some fruit jars about 100 yards from the still and about the same distance from the house. Some of the jars had whiskey in them and others were empty. The sheriff then went to the house and arrested the defendant. The house was searched, and several fruit jars were found there. Two of them had about two tablespoons full of whiskey in them, and the others smelled like they had contained whiskey. A pair of rubber boots, with clay on them like the clay that came out of the pit where the mash was found, was on the porch. The bottoms of the boots were rough and some of the tracks leading from the house to the still corresponded with .the tracks of these boots. A spade was also found at the house which had clay on it like the clay in the pit. A small sack of nails was on the porch which compared in size and kind with the nails used to make a cover for the pit. The still had not been operated at the place where last found, but it was ready to be operated. Everything was there except the worm, and it was found in the defendant’s lot. The defendant was arrested at his house and was not seen near the still. The persons who were with the sheriff corroborated his testimony. The mash in the barrels was just ready to be made into whiskey, and mash at this stage contains a small per cent, of alcohol. This evidence, if believed by the jury, was sufficient to warrant a conviction. It tended to show that a still was being operated in the defendant’s field, and that whiskey was being manufactured there. After the sheriff began watching the still, it was moved into a thicket near the defendant’s house. There was a path leading from the still to the defendant’s house. A spade and a pair of rubber boots were found at the defendant’s house which had on them clay similar to that found in the Pit at the still. Fruit jars containing whiskey were found about the same distance from the still and the defendant’s house. Fruit jars which smelled like they had contained whiskey were found in the defendant’s house. These facts were sufficient to show,that ttie defendant was at least interested in the manufacture of intoxicating liquors. It is true the defendant introduced witnesses who testified that the still was 200 yards from his house, and that a person could not see from it to the defendant’s house. This evidence, however, did not overcome the evidence for the State, but only tended to contradict it. These witnesses also testified that they were neighbors of the defendant, and had frequently visited Mm for many years, and had never seen any whiskey at his house. This, however, was negative testimony and had but little probative value. The evidence for the State is as strong as that held to be sufficient to warrant a conviction in Robertson v. State, 148 Ark. 585, and Cox v. State, 149 Ark 387. It is next insisted that the court erred in permitting one of the witnesses to testify that he saw a son of the defendant at the still, and another witness to testify that a boot was found at the home of the defendant which corresponded with tracks found near the still. No objection was made to the introduction of this testimony in the court below, and no exceptions saved, to the action of the court in admitting it. Admission of evidence will not be reviewed on appeal where no objection was made, or exceptions saved thereto in the trial court. Maxey v. State, 76 Ark. 276, and Walker v. State, 138 Ark. 517. It is next insisted that the judgment should be reversed because the court erred in not granting the defendant a new trial on account of newly-discovered evidence. The • defendant states in his motion for a new trial that a party who is’ unknown to him told some of Ms friends that he, the defendant, was not guilty, and that the unknown party admitted his own guilt. The statement is too vague and indefinite to warrant a reversal of the judgment. The application of the defendant on this account is not corroborated by the affidavits of other persons than his own. The name of the witness is not disclosed. His friends evidently knew who he was. There is no allegation that the witness is within the jurisdiction of the court, or any statement of facts indicating that his attendance could be secured. The defendant only states that he believes he could secure his attendance. The application, under the circumstances, was not sufficient, and the court did not abuse its discretion in refusing to grant a new trial on this account. Rynes v. State, 99 Ark. 121. It is also insisted that the court erred in permitting the State to introduce in evidence a copy of the judgment of the Federal court in which the, defendant pleaded guilty of having a still in his possession. The indictment in the present case was returned on the 3rd day of March, 1921. The evidence shows that the defendant was arrested on the 18th day of January, 1921. The information filed in the Federal court charged the defendant with having a still in his possession on the 19th day of January, 1921. The defendant pleaded guilty to this offense. It will be noted that the two occurrences were about the same time, and the fact that the defendant pleaded guilty to having a still in his possession was competent evidence in the present case. It tended to connect the defendant with the manufacture of intoxicating liquors. It amounted to an admission on his part that he had-a still in his possession at the time the sheriff discovered the still near his house. Beason v. State (Tex. Crim. App.) 67 S. W. 96, and State v. LaRose (N. H.) 52 Atl. 943. The other evidence in the case showed beyond question that some one was manufacturing intoxicating liquors at the still found in the defendant’s field near his house. It is true the information in the Federal court which was introduced in evidence contained two other counts. One of these charged the defendant with manufacturing intoxicating liquors and the other charged him with unlawfully possessing intoxicating liquors. The record in the Federal court, however, shows that these two counts were dismissed, and the defendant only pleaded guilty to the offense of having a still in his possession. Hence no prejudice could result to him in the present case from introducing in evidence the full information filed in the Federal court. Finally, it is insisted that the judgment should 'be reversed because, after the jury had been out a while to consider its verdict, it returned into court and asked for special instructions concerning the certified copy of the Federal court proceedings. The court then instructed them that they could consider the same together with all the other evidence in determining the defendant’s guilt. With regard to this, it need only he said that it was not made one of the defendant’s grounds for motion for a new trial. It is well settled in this State that error cannot be predicated on rulings of a trial court which were not assigned as erroneous in the defendant’s motion for a new trial. Freeman v. State, 150 Ark. 387, and Gooch v. State, 150 Ark. 268. We find no prejudicial errors in the record, and the judgment will be affirmed.

Hart, J. George Cegars prosecutes this appeal to reverse a judgment and sentence of conviction against him upon the verdict of a jury finding him guilty of murder in the first degree. It is earnestly insisted by counsel for the defendant that the judgment should be reversed because of a defect in the indictment charging the venue of the crime. The indictment is as follows: State of Arkansas Against George Cegars In the Arkansas County Circuit Court, Northern District, August Term A.D. 1921. The grand jury of the Northern District of Arkansas County, in the name and by the authority of the State of Arkansas, accuse George Cegars of the crime of mur-. der in the first degree committed as follows, to-wit: The said George Cegars, in the county and State aforesaid, on the 15th day of April, A.D., 1921, did then and there unlawfully, wilfully, feloniously, with .malice aforethought and after premeditation and deliberation, kill and murder one Henry Carter by then and there shooting him, the said Henry Carter, with a certain gun, then and there loaded with gunpowder and leaden balls, which said gun was then and there had and'held in the hands of him, the said George Cegars, contrary to the statute in sucli cases made and provided, and against the peace and dignity of the State of Arkansas. W. J. Waggoner, Prosecuting Attorney. It will be noted that the place where the crime is alleged to have been committed is stated in such manner as to show that the court had jurisdiction of the offense. The body of the indictment shows that the grand jury of the Northern District of Arkansas County in the name and by the authority of the State of Arkansas accuses George Cegars of the crime of murder in the first degree. It is true that the charging part of the indictment alleges that the crime was committed-in the county and State aforesaid, without alleging that it occurred in the Northern District of said county and State. This was not necessary under our statute. Section 3020 of Crawford & Moses’ Digest reads as follows: “If the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was committed in the local limits of the jurisdiction of the court in which the grand jury was impaneled.” This section of the statute is a part of our Criminal Code and has been upheld in the following cases: Whetstone v. State, 32 Ark. 179, and Brassfield v. State, 55 Ark. 556. In each of these cases the defendant was convicted of the crime of murder in the second degree and made the same objection to the indictment as is made in the present case. Therefore the objection to the indictment applies to matters of form and not substance and is not well taken. The body of the indictment shows that it was found by the grand jury of the Northern District of Arkansas County, and under the statute the crime will be considered as having been committed within the local jurisdiction of the court in which the indictment is found. The court gave instructions at the request of the State, and also of the defendant. Counsel for the de fendant in this court urged a reversal of the judgment on account of certain instructions given by the court. No objections were made to these instructions by counsel who represented the defendant in the court below. The jury returned the defendant guilty of murder in the first degree. He made no objections to the evidence adduced, or to the instructions given by the court. Therefore, we cannot consider any alleged errors on account of the introduction of evidence or the giving of instructions. Harding v. State, 94 Ark. 65, and Morris v. State, 142 Ark. 297, and cases cited. Evidence on the part of the State warranted the jury in finding the defendant guilty of murder in the first degree. The deceased, Henry Carter, and his wife were separated. The defendant, Gorge Cegars, had been paying attention to Carter’s wife. Carter told him that he must cease doing this until a divorce had been secured. Between five and sis o’clock in the morning on the first day of April, 1921, the defendant, George Cegars, approached Henry Carter in the Northern District of Arkansas County, Ark., and drawing his gun, shot him to-death. The deceased was unarmed, and there was no cause for the shooting. The deceased did nothing whatever to provoke the defendant to attack him. When the defendant fired the first shot, the deceased started to run, and the defendant continued shooting at him until he had killed him. According to the defendant’s evidence, he was afraid of the deceased and killed him because he had his hand in his pocket, and he thought the deceased was going to shoot at him. We find no error in the record, and the judgment will be affirmed.

Humphreys, J. Appellant was indicted, tried and convicted in the Garland Circuit Court for the crime of manufacturing and being interested in the manufacture of intoxicating liquors, and as a punishment therefor was adjudged to serve a term of one year in the State penitentiary. An appeal from the judgment has been duly prosecuted to this court, and a reversal is sought upon the grounds: First: That the evidence is insufficient to support the verdict; Second: That instruction No. 6 given by the court was erroneous; Third: That the venue was not established; and, Fourth: That a new trial should have been granted upon newly discovered evidence. (1). Appellant owned a farm known as the Guerin place, not over seven miles east of Hot Springs, and perhaps nearer. He also owned a place on the Pleasant Valley road, known as the Nichols place, back of the Essex Park. Appellant and his wife separated and he went to Atlantic City to visit his sister. He returned to Hot Springs in October, 1920, and while there conveyed the farm on Pleasant Valley'road to his wife. He testified that he also gave her the Guerin place, east of Hot Springs, but made no deed to her. Mrs. Guerin and her children resided a part of the time on the mountain place and a part of the time on the Guerin place, and when there had a young man and a Miss Baldwin living with he.r. These young people subsequently married and remained most of the time on the Guerin place. Appellant and his father resided on the Nichols place. While at or near Hot Springs, appellant made occasional visits to the Guerin place to see his family. He made another trip to Atlantic City, returning* about December 21st. From that time until his arrest, in January, 1921, he visited his family about once a week, going late in the afternoon and returning about 9 o’clock p. m. on these occasions. He contributed towards the support of his family during the time. Near about Christmas Roy Ste-gall, Federal prohibition enforcement officer, searched the Guerin place, found a small amount of red whiskey, but no still, on the farm. Appellant was there at the time. On Sunday towards the latter part of January the sheriff and his deputies, with Stegall, made a search of the Guerin house - and farm and found a still in a hollow or ravine 150 yards from, and in sight of, the house. They found ten or fifteen gallons of whiskey and a dozen barrels of mash at the still; also several hundred pounds of sugar, kegs, etc., in the barn, about one hundred yards from the still. Mrs. Guerin and family left the house soon after the arrival of the officers, presumably in company with Will Smith. Mrs. Harris, who lived across the creek from the Guerin place, testified that two or three weeks before the seizure and confiscation of the still twelve of her pigs had died from drinking the slop and eating the mash at the still; that she sent appellant word by Will Smith that the pigs had died from the effect of drinking the slop and eating the mash, and demanded pay for them; that after insistence on her part appellant paid her $8 for them and promised to put a fence around the still. On the night of January 22nd appellant and a companion by the name of Wilcox were arrested in Hot Springs, and a bottle of whiskey and two hundred pounds of sugar were found in appellant’s car. Appellant testified that when he made the second trip to Atlantic City Will Smith applied to bim to rent the Guerin place; that he told bim to see his wife, and supposed that she had rented it to him. He denied any knowledge of or connection with the still or the manufacturing of liquor. He admitted making frequent visits to see his family, and that he was in the barn at times, but denied seeing any kegs or sugar in the barn. He testified that he paid Mrs. Harris for the pigs to keep down any trouble, and told Will Smith that if whiskey was being manufactured on the place he wanted him to quit, that he didn’t care to get into trouble. He further testified that the whiskey and sugar found in his automobile on the night of his arrest belonged to Wilcox; that he had loaned the automobile to Wilcox several hours before, his arrest. We think there is substantial evidence in this record tending to show that appellant was manufacturing or interested in the manufacture of intoxicating liquors on the Guerin farm. ' (2) Instruction No. -6, of which appellant complains, is as pollows- “There „s an additional instruction that I overlooked instructing the jury; that part of the indictment that charges him with being interested in the manufacture and making or being interested in it, if he was interested in it, that is if it was on his property and he knew it or got some profit out of it he would be guilty under the indictment, regardless of whether he was present at the time of its being made; but, on the other hand, if the place was in charge of his wife and he had nothing to do with it and had no interest in the manufacture of whiskey, then he would not be guilty.” This instruction was given orally, and inaptly explained “an interest in the manufacture of whiskey.” But when read as a whole it is quite clear that the court meant to tell the jury that before appellant could be convicted the evidence must show that he was interested in the manufacture of whiskey. The latter part of the instruction makes it clear, because the jury are distinctly told that “if the place was in charge of his wife, and he had nothing to do with it, and had no interest in the manufacture of whiskey, then he would not be guilty.’ The inapt expression defining what it would take to constitute an interest in the manufacture of intoxicating liquor is the character of error that should have been taken advantage of by a specific objection. If the court’s attention had been called to the fact that the meaning of the instruction was beclouded by the language used, it is quite apparent the court would have corrected the language so as to clearly express the intended meaning. Prejudicial error was not committed in giving the instruction. (3). The venue was sufficiently established by the evidence. The farm was located by the witnesses as from four and a half to seven miles east of Hot Springs. The jury were warranted therefore in finding that the farm upon which the still was located was within seven miles of Hot Springs, and the court will take judicial knowledge that the east line of Garland county is more than seven miles from Hot Springs. Forehand v. State, 53 Ark. 46. . (4). Newly discovered evidence was made the ground of appellant’s motion for a new trial, and the evidence, in substance, was that appellant was seldom seen upon the Guerin farm from October, 1920, until the time of his arrest in January; that the still was set on the farm in October, 1920, during the absence of appellant in the east; that Will Smith had stated to the witnesses named in the motion that the. still belonged to him, and that appellant was not interested in it or in the manufacture of intoxicating liquors. We cannot agree with learned counsel that it clearly appears -that the trial court abused its discretion in refusing to grant a new trial on account of newly discovered evidence. The facts set out in the motion for a new trial consist largely in hearsay evidence of Will Smith. This evidence was inadmissible had a new trial been granted. The other facts set ont in the motion are largely cumulative. No error appearing, the judgment is affirmed.

Humphreys, J. Appellant was indicted, tried and convicted in the Sharp Circuit Court for the crime of robbery, and as a punishment therefor was sentenced to serve a term of five years in the State penitentiary. An appeal has been duly prosecuted to this court from the judgment of conviction. Appellant’s only insistence for reversal is that the court erred in denying his motion for a continuance. The identity of the appellant as the person who committed the robbery, and whether he was present, or was elsewhere, when the robbery was committed, were vital issues in the case. Among other marks of identity, the witnesses for the State identified appellant by a red beard of several days’ growth. The evidence adduced in behalf of the appellant tended to show that he had been shaved on the evening of the day before the robbery. The State’s evidence tended to show that appellant committed the robbery at about 8:30 p. m. on March 25, 1921. The evidence adduced in appellant’s behalf tended to show that at that particular time he was at or near Franklin, a distance of from eight to twelve miles from the home of Andy McConnell, upon whom and in whose house the robbery was committed. Appellant requested a continuance in order that he might obtain the evidence of Preston Jennings, who, if present, would testify that he shaved appellant close all over the face on the evening of the day before the robbery, and that he might obtain the evidence of Cleffie Majors, who would testify, if present, that she saw appellant in her homo at 8 o’clock on the night of the robbery, about nine miles from where the robbery was committed. It was stated in the motion for a continuance that a subpoena had been issued for Preston Jennings, directed to the sheriff of Izard County, which was the residence of said witness, but that the subpoena had been returned unserved: that the witness was absent from the State of Arkansas temporarily and would return in a very short time. It was also stated in the motion that a subpoena was issued and served upon Cleffie Majors, who was not in attendance on the court, because,. according to appellant’s understanding, she was physically unable to be present. The record reflects that appellant and four other witnesses testified that appellant was shaved on Thursday evening March 24, 1921, and that appellant and three other witnesses' testified, in substance, the same as the alleged testimony of the absent witnesses, in support of appellant’s alibi. Appellant’s motion for a continuance was insufficient in that it failed to show where his witness Preston Jennings had gone or when he would return. Appellant should have made a showing that he could procure the attendance of the witness within a reasonable time, it appearing on the face of the motion that the witness was out of the jurisdiction of the court and not amenable to its process. C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509; James v. State, 125 Ark. 269. The motion was also insufficient in that it failed to substantially show that Cleffie Majors was sick and unable to attend court, or that her attendance could be procured at the next or any subsequent terms- of the court. The court was justified in denying the motion for a continuance upon these grounds, as well as upon the ground that the testimony of the absent witnesses was cumulative. No error appearing, the judgment is affirmed.

Wood, J. The appellant was convicted under an indictment, which is as follows: “The grand jury of Sebastian County, Greenwood District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, C. Y. Smith, of the crime of sodomy, committed as follows, to-wit: The said defendant, in the county, district and State aforesaid, on the 13th day of March, 1921, unlawfully, feloniously and diabolically and by force, disregarding the laws of nature, in and upon one Dixie Smith, a fe male person, did make an assault upon and did then and there unlawfully, feloniously and diabolically carnally know and abuse her, the said Dixie Smith, against the peace and dignity of the State of Arkansas.” Was the indictment sufficient? Section 2746 of Crawford & Moses’ Digest provides : “Every person convicted of sodomy, or buggery, shall be imprisoned in the penitentiary for a period' not less than five nor more than twenty-one years.” In the absence of a more specific statutory definition as to the ingredients of the offense, we must look to the common law for such particulars. Mr. Bishop says: “Not alone to protect the public morals, but for other reasons also, sodomy — called sometimes buggery, sometimes the offense against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copulation by human beings with each other against nature, or with.a beast — is, though committed in secret, highly criminal.” 1 Bishop’s Criminal Law, page 308, § 503; also 2 Bishop’s Criminal Law, § 1191. And in 8 R. C. L., § 364, page 333, it is said: “The crime of sodomy, broadly and comprehensively speaking, consists of unnaiural sexual relations between persons of the same sex, or with beasts, or between persons of different sex, bui in an unnatural manner.” (Citing cases.) The Supreme Court of New York, in Lamberts on v. People, 5 Parker’s Criminal Reports^ page 200, held valid an indictment precisely similar, in essential averments, to the one now under review. The court said: “The words usual in indictments for the offense of which the defendant was. convicted and.. which , were omitted in this case are not words of this character. The indictment contains all the words -of art required. * * * jiQr ap ^haf; the pleader should have stated in charging the offense is-expressly alleged, Or, by necessary implication, included in what is alleged, in the indictment in question.” . ' ' ' • “An indictment or information charging sodomy, or the infamous crime against nature, naming it, with a designated person or animal, is sufficient without setting forth in detail the manner in which it was committed. It is unnecessary to lay the carnaliter cognovit in the indictment, in order to specify whether defendant was agent or pathic. A charge substantially in the language of the statute is, as a rule, sufficient, even though the offense is not specifically defined by the statute. An indictment charging an attempt to commit the infamous crime against nature is sufficient without an averment of a particular act constituting the attempt.” 23 Standard Encyclopedia of Procedure, page 962. Oases are cited in a note in support of the text. We conclude therefore that the indictment is valid. The only other question presented is whether or not the evidence is sufficient to sustain the verdict. The evidence is revolting in detail, and it could therefore serve no good purpose to set it forth. The prosecutrix was the wife of the appellant, and, while he stoutly denies the charge and vigorously contradicts her testimony, we nevertheless find that her testimony tends to support the verdict. There is no error in the record, and the judgment is therefore affirmed.

Minor W. Millwee, Justice. Appellant, Manie Sahúman, owns four vacant lots in Springdale Addition to the City of Little Rock, Arkansas. The lots are 50 feet wide and 100 feet long and face south on “0” Street. In the latter part of 1945 appellees, Redding Stevenson and George Wittenberg, operating as S & W Development Co. constructed a sewer line running east and west across the north end of appellant’s lots about 30 or 35 feet south of the north lot lines. The sewer line was constructed to serve a residential area being' developed by Stevenson & Wittenberg and connected' with tbe city’s line west of appellant’s property. The line was built across appellant’s lots without his knowledge or consent and by mistake, it being the intent to place the line in the alley to the north. Appellant learned of the construction of the line shortly before its completion. He testified that when he first discovered the work being done, about five feet of pipe remained uncovered on his.lots; that a few days later he made complaint to appellee Wittenberg, who told him that the line might be about ten feet over on appellant’s lots, but it would enhance the value of the lots and appellant could connect any buildings he might construct on the lots to the line; that he neither .agreed nor disagreed to what Wittenberg told him; and that he knew at the time of the conversation that the line was on his lots, but did not know its exact location. He made no further complaint until the spring of 1948 when he learned that the F.H.A. would not approve a loan for the construction of a home on the property because of the location of the sewer line. Appellee Wittenberg testified that at the time appellant first complained of the construction of the line there was no express agreement as to whether the line should remain or be moved, but that he and appellant had a friendly understanding that appellant’s lots would be cleared off to his satisfaction and that appellant would be permitted to connect any future construction on the lots to the sewer line. He also testified that at the time of his conversation with appellant, construction of the sewer had been completed with the exception of some finishing work west of appellant’s lots where some of the pipe had not been covered and some leveling off of. the ditch that remained to be done; that it was a year or 18 months after this conversation when appellant’s son-in-law made complaint about the location of the line and his inability to secure a loan from the F.H.A. Mr. Wittenberg also stated that in order for appellant to have sewer connections before the line was built, he would have had to build his own line for a distance of from 750 to 1,000 feet, which would have been extremely expensive and that the presence of the line in controversy enhanced the value of appellant’s lots. After the sewer line was completed by Stevenson & Wittenberg, it was transferred to appellee, Little Bock Sanitary Sewer Committee, for operation and maintenance under an arrangement whereby the committee charged a fee to property owners connecting with the line to reimburse the builders. Appellant filed this suit on May 28, 1948, seeking a mandatory injunction to require appellees, Stevenson & Wittenberg, to remove the sewer line from appellant’s property. In their answer appellees pleaded the execution of an oral agreement for an easement based upon a valuable consideration; that said agreement was relied on by appellees; and that appellant stood by for approximately two years thereafter without objection, knowing that appellees would expend large sums of money to complete the sewer, and thereby acquiesced in completion of the line, at additional expense, which conduct on the part of appellant created an equitable estoppel barring him from the relief sought. Appellant filed a reply to the answer pleading the statute of frauds as a defense to the alleged oral agreement for an easement. After trial a decree was rendered in favor of appellees and the complaint of appellant was dismissed for want of equity. There is little dispute in the evidence which shows that the sewer line was placed upon appellant’s lots by mistake and without his knowledge or consent, but that as construction was nearing completion, appellant tacitly agreed that the.sewer line might remain on his lots in consideration of appellees’ promise to clear and level the lots and the further right of appellant to connect with the sewer line free of the usual charge, if houses were later constructed on the lots. For reversal of the decree appellant contends that the right to construct and maintain the sewer line, or the oral agreement to allow it to remain on his land, constituted an easement which could not be consummated except by deed and that the oral agreement, if made, amounted to a mere license which was revocable at will. It is appellees’ contention that appellant, by his words and conduct, granted an easement in the nature of an executory contract which was in effect a future grant of an easement fully performed, and thereby taken out of the operation of the statute of frauds; also that appellant is estopped by his own conduct from asserting his right to revoke the oral agreement. Both parties rely on the early case of Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190, which has been frequently cited in this and other jurisdictions. There the owners of unsurveyed adjoining lands orally agreed to dig ditches for the purpose of draining their lands and constructed a main ditch as a boundary line between them. Later the lands were surveyed by the government and one of the parties closed the ditch in violation of the oral agreement and threw up an embankment so as to back the water upon the land of the other party. It was held that the agreement between the parties was in the nature of a license which, having been accepted and acted upon, could not be disregarded; that full performance on the part of plaintiff made it an executed contract: and that defendant had no right to close the ditch. It was there said: “An easement, in contradistinction to a simple or voluntary license, is defined to be, a liberty, privilege, or advantage, which one man may have in the lands of another without profit, and it may arise by deed or prescription. . . . “From this definition of an easement it follows, therefore, that it can only be communicated by deed, or other instrument in writing, or by prescription, and as a consequence, unless it be claimed by prescription, the privilege, under the statute of frauds, must be evidenced by deed, or some other writing. . . . “Notwithstanding the grant of an easement is embraced within the operation of the statute of frauds, and therefore must be in writing, yet it has been holden, that a parol grant executed will be upheld and sustained under the same circumstances, and on the same principle, that a parol contract for the sale of land would be. . . “Besides this, where there has been given a parol license of a privilege amounting to an easement, and where the enjoyment of it must necessarily be preceded by the expenditure of money or capital, or where the grantee has made improvements, in good faith, under the grant, or invested his'capital in consequence of it-— under these circumstances the grantee becomes a purchaser of the easement granted by parol for a valuable consideration, and consequently will be entitled to have it specifically performed in equity, unless the party will re-imburse' him in his expenditure, or pay him for his improvements, provided this will put the grantee in statu quo. See Sheffield v. Collier, 3 Kelly (Ga.) Rep. 84 et seq., and the cases cited above.” See, also, Walker v. Shackleford, 49 Ark. 503, 5 S. W. 887, 4 Am. St. Rep. 61; Belser v. Moore, 73 Ark. 296; 84 S. W. 219; Allison v. Schweitzer, 144 Ark. 123, 221 S. W. 454. Appellees also rely on the case of Allison v. Schweitzer, supra, where, pursuant to oral permission given by appellant, appellee built a wall two inches over the dividing line so as to touch appellant’s wall, and appellant stood by with knowledge that appellee was expending money and labor in the erection of the wall in reliance on the oral agreement. The court said: “Upon the merit of the case, it may be said that the question presented is not that of the enforceability of an executory parol contract for an easement. Appellee is in possession of the land in dispute, and the question is, ‘Can appellant be heard to say that no easement exists?’ In 9 R. C. L., at page 746, it is said: ‘It is recognized, however, that, though a grant of an easement is embraced within the operation of the statute (of frauds), and must, therefore, be in writing, yet a parol grant executed will be upheld and sustained under the same circumstances and on the same principle that a parol contract for the sale of land would be.’ Among the numerous cases cited in the note to the text quoted are our own cases of Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190, and Walker v. Shackelford, 49 Ark. 503, 5 S. W. 887, 4 Am. St. Rep. 61. See, also, Salyers v. Legate, 93 Ark. 606, 125 S. W. 1010, 137 Am. St. Rep. 107; Rudisill v. Cross, 54 Ark. 519, 16 S. W. 575, 26 Am. St. Rep. 57.” The facts in the case at bar do not bring it within the principles announced in the above cases. Appellees built the sewer across appellant’s land without his knowledge or consent. They entered upon the lots as a trespassers and not’ in reliance upon any agreement with appellant, oral or written. The construction of the sewer and the expenditures by appellees were not made under a parol grant with the knowledge and consent of appellant. It is true that appellant reneged on the oral agreement he tacitly made for the sewer to remain on the lots after learning of the trespass, but the outlay of money in construction of the sewer occurred prior to the agreement and not as an inducement thereto. While appellees alleged in their answer that they expended large sums of money to complete the sewer after appellant impliedly agreed that it might remain on his property, there was a failure of proof to substantiate this allegation. The effect of the candid testimony of appellee Wittenberg is that the construction was nearing completion at the time of the agreement and only a small amount of work was done thereafter. The facts here, considered in their aspect most favorable to appellees, show an oral agreement amounting to a mere license to allow the sewer to remain on the land of appellant after the work had been substantially completed. There is considerable division among the authorities as to whether a parol license to do an act on the land of the licensor remains at all times revocable at his option, or whether such license becomes irrevocable where the licensee has entered under the parol license and expended money or labor with the knowledge and acquiescence of the licensor. 33 Am. Jur., Licenses, §§ 103 to 105. At § 103 the textwriter says: “The cases holding to this rule as to irrevocability of certain licenses proceed on two distinct theories, one theory being that when the licensee expends large sums of money in making the improvement, and such expenditure is made without opposition by the licensor, the license becomes executed and, as such, irrevocable; and that, in fact, what was at its inception a license becomes in reality a grant. The other theory and the reason most frequently given is that after the execution of the license, it would be a fraud on the licensee to permit a revocation; and the principles of equitable estoppel are invoked to prevent what would work a great hardship in many instances. This is especially true where a licensor not only grants the right to the licensee to go on his land but joins in the enterprise and accepts the benefits of the licensee’s labor and expense. “Of course, where there has been no expenditure on the faith of the license, there is no foundation for an estoppel,-and the same reason does not exist for holding it irrevocable, even though it is executed. . . . The rule of irrevocability will not apply to a mere naked license predicated on an invasion of another’s right, and which is in effect a trespass on his property; and this is true even when money has been expended in improving the property, under a belief that the uninvited use relied on will never be interrupted. ” See, also, Anno. 49 L. R. A. 497. The rule of irrevocability finds support in Wynn v. Garland, supra, but, as previously pointed out, the entry and expenditures in the instant case were not made under and on the faith of the license, and support for the doctrine of estoppel is, therefore, lacking. Before a party will be estopped, it must be shown that the party relying upon estoppel is put at disadvantage by the action of the party sought to be estopped and has been thereby led to change his position for the worse. Fox v. Drewry, 62 Ark. 316, 35 S. W. 533; Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S. W. 2d 172. The case of Pocahontas Light & Water Co. v. Browning, 53 W. Va. 436, 44 S. E. 267, involved facts similar to those here and the court held: “A representation, admission, or act after the party’s position has been changed will not avail as grounds for estoppel, because it cannot have been acted on.” We, therefore, hold that the license for the sewer to remain on the premises is revocable by appellant, but this does not necessarily mean that he is entitled to the extraordinary remedy of a mandatory injunction against appellees, Stevenson & Wittenberg, for removal of the line from appellant’s property. The proof shows that after appellant impliedly agreed for the sewer to remain on his property, it was turned over to appellee, Little Rock Sanitary Sewer Committee, a public agency charged with the operation and maintenance of the sewer, and placed in use. Other owners in the vicinity have doubtless connected their properties with the line, and it is not shown whether the line can be removed from appellant’s lots without serious inconvenience, expense and disruption of service to these owners. Equity should refuse to issue a mandatory injunction, even though an admitted legal right has been violated, where it appears that the intervening rights of the public should be considered and the issuance of the injunction would cause serious public inconvenience or loss without a correspondingly great advantage to the person seeking it. If such is the situation here — and the proof on this phase of the case has not been fully developed — appellant should be relegated to his remedy for damages resulting from the construction of the sewer on his premises. The decree is accordingly reversed, and the cause remanded with directions to the trial court to determine whether a mandatory injunction should issue and, if not, to proceed with the determination of the damages, if any, sustained by appellant by reason of the construction of the sewer on his property.

Holt, J. Appellant, Sims, a resident and taxpayer in Hazen School District No. 2 (Prairie county), for himself and all others similarly situated, filed a complaint in which he alleged, in effect, that appellee, School District, by its Board of Directors, proceeding under Act 161 of the General Assembly of 1949 (Approved February 24), held a special election for the purpose of voting a six mill tax to support a bond issue of $75,000, for new construction, improvement of its present school facilities, and for refunding outstanding bonds which the district owed. He further alleged that the special election (held April 30, 1949) favored the tax and bond issue by a vote of 33 for, and none against, but that said special election was void and of no effect for the reason that Amendment No. 40 of the Constitution of Arkansas, adopted November 2, 1948, prohibits the holdings of a special election for such purpose, regardless of any legislative enactment. His prayer was for an order “restraining the defendant, district, from proceeding any further in its effort to execute and deliver the hereinabove described bond issue and to pledge a continuing building fund for its payment, ’ ’ etc. Appellee filed demurrer, alleging, in effect, that the complaint failed to state a cause of action. The trial court sustained this demurrer, and this appeal followed. The primary and decisive question presented is: Can the appellee, School District, impose the tax, voted here, to support a bond issue, as alleged, at a special election held for that purpose? We hold that it cannot for the reason that Amendment No. 40 of our Constitution, adopted November 2, 1948, prohibits the imposition of such a tax unless it has been approved by a majority vote of the qualified electors of such School District at an annual school election, and not at a special election, as was attempted here. The General Assembly could not by any provision of Act 161, supra, do anything forbidden by the Constitution. We said in Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39: “The act . . . could not have the effect of amending the Constitution, as would be the result if the contention of counsel be correct. The Legislature cannot cure a proceeding made void by the Constitution, and no act that it passes can breathe vitality into a thing that is dead. The Legislature cannot do indirectly a thing directly prohibited by the Constitution.” Such is the effect of our holding in the recent case of Adams v. DeWitt Special School District No. 1, 214 Ark. 771, 218 S. W. 2d 359. That decision is controlling here. In this connection, we may add that we have not overlooked Act 270 of the 1949 General Assembly, (approved March 10th). Accordingly, the decree is reversed and the cause remanded with directions to overrule appellee’s demurrer. Justice McFaddin concurs.

Minor W. Millwee, Justice. In June, 1946, appellees, Raymond P. Loetscher and Charles H. Loetscher started construction of a building on the Base Line Road in a rural community west-of the City of Little Rock. They planned to use the building in the operation of a garage for. the repair of motor vehicles. In order to secure a loan from the Reconstruction Finance Corporation to complete construction of the building, appellees were required to procure insurance against the perils of fire, tornado and lightning. On January 22, 1947, appellant, Phoenix Assurance Company, Ltd., issued its policy to appellees against these perils in the principal sum of $12,000. The building was nearing completion when it collapsed or was destroyed during a rain and thunder storm about 4:30 or 5:00 a. m., October 18, 1947. Appellees’ claim for loss of the building by lightning was denied and they filed this suit on December 5, 1947, alleging issuance of the policy, payment of the premium of $118.20 and total destruction of the building by lightning on October 18, 1947. It was further alleged that the building was of the. value of approximately $20,000 at the time of its destruction and judgment was prayed for $12,000, plus the statutory penalty of 12% and attorney’s fee. On December 24, 1947, appellant answered admitting the issuance of the policy and that it was in force as alleged in the complaint, but denied all other allegations therein. On February 18, 1948, appellant filed an amendment to its answer pleading that the policy contained a “Full Completed Value Contribution Clause” which provided that the company was liable for no greater proportion of the loss than the amount of insurance bore to 100% of the actual value of the building when fully completed and ready for occupancy. A second, amendment to the answer was filed April 12, 1948, specifically denying that the building had been totally destroyed and alleging that if appellee should recover any amount, it should be limited to 12/20 of the amount of damage to the building as it existed on the date of its destruction. On April 19, 1948, appellant withdrew its first amendment to the answer. The issues were tried before a jury resulting in a verdict for appellees for $12,000 for which judgment was rendered together with 12% penalty and attorney’s fee of $1,800. The building in question was 125 feet long and 60 feet wide with walls of concrete blocks and brick and a metal roof supported by steel trusses 60 feet in length and extending crosswise from wall to wall. Construction of the building was under the supervision of Henry Buddenburg, appellees’ uncle, who was an experienced builder, but not an architect or engineer. Appellees presented one witness who testified that he saw lightning strike and demolish the building during the storm on the morning in question. Other witnesses who lived nearby heard a violent clap of thunder and the noise of the falling building. Much of the testimony offered by appellant was directed to the type of materials and construction used and several experts gave it as their opinion that the building collapsed because of faulty materials and improper construction. Thus a disputed question of fact was presented to the jury as to the cause of the destruction of the building and the issue was resolved in favor of appellees. Appellant first contends that the evidence is insufficient to support a finding by the jury that the building was totally destroyed and that the trial court, therefore, erred in submitting this issue to the jury. Appellant says: “It is our contention here that the uncontradicted and only testimony clearly proved that certain portions of the building remained which could be used for the reconstruction of the building, and that there was, there-' fore, not a total loss. Under these conditions the court should have instructed the jury that appellees could not recover the full amount of their policy of insurance and should have instructed them to determine the value of those portions of the building remaining and make the appropriate calculation under the provisions of the policy or permit the court to make the calculations after determining the extent of the loss.” The court gave Instructions 1 and 2 requested by appellees as follows: “Instruction No. 1 — You are instructed that the burden of proving that said building being constructed by the plaintiffs and insured by the defendant was struck by lightning and as a result thereof was totally demolished is upon the plaintiffs, and if you find from a preponderance of the evidence in this case that the building was struck by lightning, and it was so far destroyed that no substantial portion remains in place capable of being 'utilized to advantage in restoring the building in the condition in which it was before being struck by lightning, then the building is a total loss. Whether or not the remnant of the building, if any remains, is adapted to use to restore the building to its condition before being struck by lightning depends on whether a reasonably prudent owner, uninsured, desiring to construct such a building as the building was before being struck by lightning, in proceeding to restore the building to its original condition, would utilize the remnant. “Instruction No. 2 — You are instructed that the terms of the insurance policy issued to plaintiffs by the defendant covers the construction of the building described in said policjr of insurance, and until fully completed or occupied in whole or in part, said policy of insurance was in full force and effect. If you find from a preponderance of the evidence in this case that said building was demolished as a direct result of being struck by lightning prior to its completion or occupancy in whole or in part, your verdict will be for the plaintiffs.” Appellant objected generally to the giving of Instruction No. 1 and specifically to Instruction No. 2 on the ground that it afforded no basis upon which to fix the amount of a verdict for partial destruction of the building. While appellant did not request an instruction confining the jury’s consideration to partial destruction of the building, the court gave appellant’s requested Instruction A, as follows: “If you should find that the plaintiff is entitled to recover in this cause and in addition you should further find that the building was not a total loss, but that there was some value remaining, you will answer the following interrogatories: 1. What is the actual completed value of the building? 2. What is the value of the salvage, if any, that you find remains after the destruction of the building? The three instructions, when considered together, correctly stated the applicable law as declared by this court in St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. 2d 304, and The Home Insurance Co. of N. Y. v. Cole, 195 Ark. 1002, 115 S. W. 267. However, appellant urges that the uncontradicted proof showed a remnant of the structure remaining which was reasonably adaptable to use in restoring the building to its former condition. The policy did not cover the cost of concrete foundations or supports which are below the surface of the ground in a building constructed without a basement. There was no basement in the building erected by appellees. Testimony on behalf of appellees was that portions of the walls standing after collapse of the building were cracked and would have to be removed and rebuilt; that it would cost more to remove and clean the concrete blocks and brick than it would to purchase new materials; and that there was nothing in the remnants of the Wrecked building from the foundation up that a prudent builder would use in restoring the structure. ' There was a concrete floor or fill four inches thick laid over gravel estimated by a witness for appellant to have cost $1,750. Appellant earnestly contends that this was a finished floor which was covered by the policy and adaptable for use in restoring the building. ■ Witnesses for appellees referred to this part of the structure as a concrete fill, or foundation, for the floor. Henry Buddenberg, the contractor, testified that this fill lacked four inches reaching the level of the highway or lot surface and that it was their plan to add four inches of concrete to the fill and put a thinner on top to bring it up to the level of the highway. Appellees gave similar testimony. The cost of this part of the structure was not included in the itemized statement introduced by appellees showing a total of $16,942.46 in the costs of labor and materials used in the construction of the building at the time of its collapse. "VVe think this evidence, considered in the light most favorable to appellees, was sufficient to support a finding that this part of the structure constituted a part of the foundation for a floor wMgIi was below the surface of the lot. Hence, it was not covered by the terms of the policy and any ambiguity in the exclusion clause is to be construed strictly against the insurer and liberally in favor of the insured under our well established rule of interpretation of insurance contracts. While the evidence on the whole was conflicting as to whether or not the remnants covered by the policy were capable of being utilized to advantage in restoring the building to its former condition, it was sufficient to support the verdict for total loss of the building. Since the jury found there was a total loss, it is unnecessary to consider the contribution clause relied on by appellant. Under our Valued Policy Statute (§ 7720, Pope’s Digest) an insurance company is liable, in case of total loss, for the full amount stated in the policy, or the full amount upon which it collects a premium. St. Paul Fire & Marine Ins. Co. v. Green, supra; Firemen’s Insurance Company v. Little, 189 Ark. 640, 74 S. W. 2d 777, and cases there cited. A second ground for reversal relied on by appellant, and strongly urged in the oral argument, is that the court erred in refusing to declare a mistrial when it was discovered that Paul Lyons, one of the jurors, was disqualified and incompetent to serve on the jury. It is contended that the juror deliberately and intentionally failed to disclose his knowledge of the facts of the case upon his voir dire examination and that appellant was thereby prevented from exercising his right of peremptorily challenging said juror. . During the course of the trial, and before appellees had completed their testimony in chief, the jury was directed to view the wrecked building at the request of appellant. After the usual instructions had been given, the juror, Paul Lyons, asked the court, “Do you have to go out there, if you have already seen it?” The juror was then thoroughly examined by counsel for both parties and stated that he had seen the collapsed building-15 or 20 times in passing it on visits to his parents who resided on the Base Line Road one-half mile beyond the building; that he knew none of the parties to the law suit and did not realize that it involved the building he had seen until they commenced talking about “Base Line Road” (it is no.t shown whether this occurred in the opening statement of counsel or the testimony of the witnesses); that on visits to his parents he had heard the rumor that the building- was struck by lightning; that he had never discussed the case with anybody and did not know there was such a case; that he had not formed or expressed any opinion as to the cause of the destruction of the building and could render a verdict based solely on the law and evidence; and that he did not know any of the people residing- in the community except his parents and one of their neighbors. Appellant also introduced Lewis B. Mize who lived in the community and had appeared as a witness for appellees. He testified that he had known Mr. Lyons 4 or 5 years and had patronized the juror’s barber shop a few times more than a year before the trial. On these occasions he had work done by another barber there with whom he was acquainted and he had never “discussed things” with Lyons. Lyons was not asked whether he knew Mize but had stated that the only people he knew in the community were his parents and one of their neighbors. The bill of exceptions does not contain the voir dire examination of the jurors nor the number of challenges exercised by either party, if any. The challenged juror did not sign the verdict, which was returned by only nine jurors. We have frequently held that it is within the trial court’s discretion to set aside a verdict when objection is made for the first time after rendition of the verdict. The same rule of discretion is applied as to the right of the court to discharge the jury or declare a mistrial during the trial. 50 C. J. S., “Juries,” § 291. In Fones Brothers Hdw. Co. v. Mears, 182 Ark. 533, 32 S. W. 2d 313, this court upheld the action of the trial court in refusing to grant a new trial on account of the disqualification of a juror by reason of relationship to one of the parties where the bill of exceptions did not disclose that any questions were asked on the voir dire examination as to relationship of the juror to the parties, and it was not shown that diligence was used to ascertain such disqualification. Appellant relies on the case of D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487. It was there held that appellants were entitled to a new trial on the ground of newly discovered evidence where it was shown that two of the jurors, previous to the trial, were offered bribes to return a verdict for the appellee and had failed to disclose the offer when questioned on their voir dire as to whether or not they had been talked to by anyone relative to the case. Since there is no record of the voir dire examination in the case at bar, we would have to indulge in speculation, which is not borne out by the facts subsequently developed, to say that Mr. Lyons was intentionally evasive and prompted by bad faith in answering questions touching his qualifications to serve as a juror. After the juror voluntarily disclosed the fact that he had seen the collapsed building, he made frank and straightforward answers to all questions. In viewing the cold record we find it insufficient to support the conclusion that he was actuated by improper motives and the trial judge was in much better position than this court to determine the juror’s qualifications; he could observe the mannerism and hear the answers of the juror. In Rumping v. Ark. National Bank, 121 Ark. 202, 180 S. W. 749, the court said: “The decision of the trial judge upon the question of a juror’s qualification must necessarily rest largely in the exercise of sound discretion, and the decision should not be set aside unless it clearly appears that there has been an abuse of discretion and that a biased juror has been forced upon the parties.” We cannot say that the trial court abused his discretion in refusing to declare a mistrial under the facts and circumstances presented here. The judgment is affirmed.

Frank G. Smith, J. This appeal involves the title to a tract of land, the value of which appears to be derived from its adaptability for duck shooting. Taxes thereon, both general and improvement district taxes, appear to have been paid at irregular intervals, with consequent sales for delinquency from which redemptions were in some instances effected. Appellee filed suit to quiet his claim of title to the land. The, title sought to be quieted, was based on a sale made Nov. 15,1923, which was duly confirmed under a decree ordering the sale in the suit of the Bayou Meto Drainage District foreclosing its liens for the delinquent taxes du'e the District for the year 1922, and the deed to appellee from the Drainage District dated January 16, 1948. Appellant claimed title under a deed to him from the State Land Commissioner, dáted Nov. 18, 1946, based upon a forfeiture to the State for the unpaid taxes of 1933. He alleged also that he had applied to the Drainage District to purchase the land, and was told that he might do so when he had acquired the State’s title, but after acquiring that title he was advised, when he applied to the Drainage District for the deed, that the land had been sold by the District to appellee. Appellant insists also that his deed from the State, dated Nov. 18, 1946, was color of title under which he made certain improvements, and he prayed judgment for the enhanced value of the land resulting therefrom. The Drainage District is not a party to this suit, and it was not shown that appellant had any contract with it of which appellee was apprised, which estopped the District from conveying to appellee. Indeed it was not shown that appellant had an enforceable contract to buy the land. He testified that the attorney for the hoard of directors of the Drainage District told him that the District would convey the land to him when he had acquired a deed from the State. It was not shown that the board of directors were aware of this promise or had made any contract with appellant, who might have purchased from the District upon a tender of the price asked for the land and thereby acquired the right to redeem from the State, but no tender of any kind was made the District. No contract was made under which appellant acquired the right to purchase from the Drainage District. The court quieted appellee’s title against appellant’s claim of title and disallowed appellant’s claim for improvements alleged to have been made. Upon that issue the case is similar to and is controlled by the opinion in the case of Baiers v. Cammack, 207 Ark. 827, 182 S. W. 2d, 938. In the Cammack case, supra, the State became the purchaser of land sold for taxes due thereon and executed a deed to Baiers which was held void for the reason that at the time of the tax sale the title was in the Improvement District claiming title in its governmental capacity. Baiers claimed the right to recover the value of certain improvements from Cammack who had acquired the Improvement District’s title. The claim for improvements was denied upon the ground that they were made while the title was in the Improvement District and before Cammack acquired the Improvement District’s title. So here, as in the Cammack case, it was not shown tjiat the improvements were made subsequent to the sale of the land by the Improvement District, but were made prior to that time. Upon the authority of the Cammack case, claim for improvements was properly disallowed. The decree quieting title and disallowing claim for improvements is therefore affirmed.

Ed. F. McFaddin, Justice. The appellant, Mrs. Canna Balcer, was tried upon an information charging her with “treating a dead body indecently.” The State claims that this is an offense at common law. From a conviction and fine of $100 there is this appeal, presenting the issues now to be decided. I. Sufficiency of the Evidence. Giving the evidence for the State its strongest probative value, the following facts are reflected: Ed White was an aged an infirm man drawing old age assistance from the State, which came as a check for $30 dated the first day of each month. With the consent of the county welfare worker, Mrs. Ganna Baker provided room, board and personal attention for Ed White, and in return therefor he endorsed and delivered to her his monthly welfare check. Mrs. Baker also cared for several other persons under similar arrangements. Ed White lived in a small cabin on Mrs. Baker’s premises a short distance from her home. His welfare check dated December 1, 1948, was received by Mrs. Baker on December 2nd, and — bearing his purported mark — was cashed by her at a local store that afternoon. About 9:00 the night of December 2nd Mrs. Baker reported to the funeral home the death of Ed White. The funeral director, his assistant and two medical doctors examined the body of Ed White, and testified that on December 2nd he had been dead at least five days. Decomposition and other ghastly conditions of the body had occurred. The State’s theory was that Ed White died on November 27th, and that Mrs. Baker kept his body until she received the welfare check on December 2nd; because it was shown that the welfare check dated December 1st would not have been delivered if his death had been known. Mrs. Baker and her witnesses testified that Ed White was alive as late as 3:00 p. m. December 2nd. One witness testified that he saw Ed White sitting in a chair on December 1st. Another witness testified that he saw Ed White seated on the step of his cabin on December 1st, but did not hear him speak or see him move. We conclude that there was sufficient evidence to take the case to the jury on the question of when Ed White died. If he died on November 27th as contended by the State, then certainly Mrs. Baker kept his body until December 2nd and did not report his death. The various positions of Ms body on December 1st would tend to show tbe handling and exposing of a dead body. II. The Offense.- It is strenuously insisted that no offense was committed by Mrs. Baker, even if the facts were as previously detailed. We hold that there was an offense committed. This is a prosecution under the common law, and the text writers and adjudicated cases state that such an offense exists at common law. In 17 C. J. 1148, in discussing offenses against dead bodies, this appears: ‘ ‘ At common law it was an offense to treat the dead human body indecently, and various specific offenses were recognized. Ordinarily it is a misdemeanor for one upon whom the duty is imposed of having a dead body buried to refuse or neglect to perform such duty. ’’ Wharton’s Criminal Law, 12th Ed., Vol. II, § 1704, says: ‘ ‘ Indecency in treatment of a dead human body is an offense at common law, as an insult to public decency. Hence it is indictable to expose such a body without proper burial; . . .” See, also, Clark and Marshall on the Law of Crimes, § 473; McClain on Criminal Law, Vol. II, § 1165; and Odgers on The Common Law of England, 2nd Ed., Yol. I, p. 16. For adjudicated cases stating the common law, and in accordance with the texts previously quoted, see: Kanavan’s case, 1 Maine 226; Finley v. Atlantic Transport Co., 220 N. Y. 249, 115 N. E. 715, L. R. A. 1917E, 852 Ann. Cas. 1917D, 726; State v. Bradbury, 136 Me. 347, 9 Atl. 2d 657; Rader v. Davis, 154 Ia. 306, 134 N. E. 849, 38 L. R. A. N. S. 131, Ann. Cas. 1914A; and Thompson v. State, 105 Tenn. 177, 58 S. W. 213. An interesting case is that of Queen v. Francis Scott, Queen’s Bench Reports, Vol. II, Adolphus & Ellis, New Series, p. 659; 42 English Common Law Reports 659. In that case Scott, the jailor, held the body of the deceased prisoner, Henry Foster, and refused to surrender it for proper burial until paid some claimed demand. The court held that the jailor was liable to prosecution. So, here, the jury could reasonably have concluded from the evidence that Mrs. Baker held the body of Ed White and had it placed in positions simulating life until she received the welfare check on December 2nd. The county welfare worker testified (and Mrs. Baker did not deny) that Mrs. Baker knew it was her duty to report Ed White’s illness or death to the county welfare worker, and that no such notification was given by Mrs. Baker. Mrs. Baker was not tried for failure to provide burial for Ed White, because the Circuit Court (possibly relying on § 83-308, Ark. Stats of 1947) instructed the jury that Mrs. Baker was relieved from the common law burden of providing burial. Yet the lifting of that burden by statute (if applicable here) left all the more in force on Mrs. Baker, as the caretaker of White, the duty to promptly report his death to the proper authorities. We conclude that the jury was justified in finding Mrs. Baker guilty of committing the common law offense with which she was charged. Section 1-101, Ark. Stats, of 1947 shows that we have adopted the common law; and under § 41-107, Ark. Stats, the penalty for common law offenses is prescribed. We have other cases wherein common law offenses have been held punishable in the absence of specifically applicable statutes. See Powell v. State, 133 Ark. 477, 203 S. W. 25, and see the other cases collected and cited following §§ 1-101 and 41-107, Ark. Stats. of 1947. III. Other Assignments of Error. We have examined these, and find them to be without merit: (a) Mrs. Baker was arrested on April 18th, and was arraigned on May 2nd, so we cannot say that the trial court abused its discretion in overruling the motion for continuance filed on May 4th, which was the date of the trial. See Willis v. State, 212 Ark. 403, 206 S. W. 2d 3. (b) At the time of the arrest, there was no endorsement on the information giving the names of the witnesses for the State; and defendant, in claiming such omission to be fatal, cites § 43-1004, Ark. Stats, of 1947. Assuming — without 'deciding — that such provision is applicable to informations, nevertheless, the requirement is merely directory. Cole v. State, 156 Ark. 9, 245 S. W. 303. The names of the witnesses for the State were furnished to defendant in open court on May 2nd, which was the date the defendant sought such information; and under such circumstances, no prejudice was shown to have been suffered by the defendant. (c) The defendant requested an instruction on reasonable doubt; but insofar as the requested instruction was correct it was covered by the State’s instructions Nos. 1, 2 and 8. The trial court is not required to repeat instructions on the same point. Farr v. State, 99 Ark. 134, 137 S. W. 563. See, also, West’s Arkansas Digest, “Criminal Law,” §§ 806(1) and 829(1). (d) The refusal of the trial court to delay the trial for the arrival of the defendant’s unsubpoenaed witness was not error. No sufficient diligence was shown. See Willis v. State, 212 Ark. 403, 206 S. W. 2d 3. Furthermore, the evidence of the desired witness (as stated by defendant’s counsel) would have been merely cumulative. See Pate v. State, 206 Ark. 693, 177 S. W. 2d 933. The defendant had already subpoenaed six witnesses under § 43-2001, Ark. Stats. of 1947, and these six witnesses were present. (e) The defendant cannot successfully complain of the failure of the .Court to instruct the jury on circumstantial evidence, since the defendant did not present to the court any requested instruction. Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114. (f) The defendant complains of the refusal of the Court to allow her witness, Mrs. McClure, to answer this question concerning Mrs. Canna Baker: ‘ ‘ During all that time has she ever reported dead bodies . . . It appears that the purpose of the evidence was to show Mrs. Baker’s good character by some specific prior act. For such purpose, the testimony was inadmissible. Shuffield v. State, 120 Ark. 458, 179 S. W. 650. But regardless of the purpose of the testimony, the record fails to show what Mrs. McClure’s answer would have been to the question; and until the offer to prove was definite to that extent, then there is no basis for assignment of error. Hugus v. Sanders, 164 Ark. 385, 261 S. W. 899; Kane v. Carper, 206 Ark. 674, 177 S. W. 2d 41. Finding no error prejudicial to the defendant, the judgment is affirmed. This is the well-established rule in appeals by the defendant in criminal cases. See cases collected in West’s Arkansas Digest, “Criminal Law," § 1144(13). In State v. Phillips Petro. Co., 212 Ark. 530, 206 S. W. 2d 771, we said: “In ascertaining the common law, we not only look to our own cases, but we revert to the early English cases, and the early writers on the common law, such as Blaekstone, Kent and Bracton. Cases from other American States are also persuasive as to what was the common law.” See, also, 25 C.J.S. 1035. We have three Arkansas cases involving dead bodies, being: Security Bank v. Costen, 169 Ark. 173, 273 S. W. 705; St. L. S. W. Ry. Co. v. White, 192 Ark. 350, 91 S. W. 2d 277; and Teasley v. Thompson, 204 Ark. 959, 165 S. W. 2d 940; but these cases have no direct bearing on the questions now involved.

Griffin Smith, Chief Justice. Workmen’s Compensation Commission found that Will Henderson’s death in September 1943 was not caused by an accident arising out of and in the course of his employment by Calion Lumber Company. Circuit Court affirmed, and Nettie Henderson, the decedent’s wife, has appealed. Here, as in the court below, it is contended that the Commission acted on insufficient- evidence. Henderson, 60 years of age, did light work at a sawmill, where he had been employed for six weeks. On September 28th he went to the mill shortly before eight o’clock and spent part of the morning handling sticks used in stacking lumber. His wife testified that he returned home at 11:45, complaining of injuries received in a fall. Nettie’s version of Will’s conversation was that he and another man were attempting to move a wagon, and in straining at a wheel [Will] lost his balance. Nettie exhibited a pair of torn overalls she said Will wore when he came home. Nettie admitted that her husband had often complained of chest pains when the day’s work had been unusually hard, but she did not know he suffered from heart trouble. After remaining at home an hour, Will started back to the mill and had reached a point fifty or a hundred feet from his destination when he fell and died. There was other testimony supporting what Nettie said Will told her regarding the alleged fall. On the other hand, a worker who was assisting Will in handling the lumber sticks testified in a manner completely at variance with the theory of traumatic injury. This witness stated positively that nothing of the kind occurred. If the Commission had believed witnesses who testified regarding Nettie’s claim that Will fell, or statements of those who testified to facts inferentially sustaining this theory, an award could have been affirmed. Medical opinion was that unusual exertion such as the claim of a strain and fall, could have produced a climactic coronary condition. But the Commission did not credit these witnesses, for it expressly found that “no accidental injury was sustained.” This belief was emphasized by the Commission’s comment that Act 319 of 1939 was not intended as life insurance, “. . . and does not compensate for the effect that ordinary physical exertion has on the body as ordinary wear and tear”. Affirmed. The suit was for the benefit of Nettie Henderson and three minor children.

Holt, J. Peter Hotze died testate in April, 1909. Under the terms of his will, executed September 27, 1907, he devised all his real estate in trust for the purpose of paying the income therefrom to his three children during their lives with the corpus to be delivered to his grandchildren upon the death of his three children and “after the youngest living child . . . born to either . . . said children shall arrive at the age of 21 years.” The will further devised to the trustee $15,000 in money or securities. . . . “He shall invest, reinvest, and keep invested the $15,000 herein given him in trust, in good and safe securities, so that he may at all times have a fund with which to make or pay for improvements upon said property, which to him may seem best. The occasion for using any part of said fund shall be at the discretion of my said son and trustee. “In case said fund shall be reduced below $15,000 at any time or exhausted by its use aforesaid, then he shall annually set apart $1,500 from the new income of said property, real and personal, for the purpose of reestablishing said fund, until it shall aggregate the sum of $15,000. . . . “It is the purpose of this will to preserve my real property not specifically described herein, united, and to keep a fund as above provided out of which the same can be at any time improved, when it shall become necessary in the judgment of my said trustee to make any improvement thereon and to divide the net annual income arising from said property, real and personal, in equal parts among my said children during their natural lives respectively, it being understood that the lawful issue of any deceased child shall represent and take the share of the deceased parent, the same as such parent would do if living. ’ ’ - In 1937, the trustee in succession filed suit in which he asked for instructions, under the terms of the will, relating to the creation of the special fund in the amount of $15,000 or for a construction of the will in this regard. His petition was heard by the court and all beneficiaries or interested parties were present, including appellants, Clara Wooldridge and Peter Wooldridge, in person or by attorney. At the conclusion of the hearing, the court, among other things, decreed: “It is further found that between the time the said Peter Hotze, deceased, made his will and the time of his death, the condition of his estate had substantially changed, and at the time of his death he did not have $15,000 in securities to leave to Frederick Hotze, the trustee under his will, for the purpose of making improvements on the property; and that provision in his will is construed as having contemplated that amount of securities would be passed to the trustee for the purpose of making improvements on the property, and that unless it was so passed to the trustee by the testator, the trustee was not required thereunder to build up the said sum of $15,000 out of income; and Emmet Morris, Trustee, is instructed not to build up said $15,000 for improvements out of income by setting aside from income the sum of $1,500 annually, or otherwise.” Thereafter, acting in accordance with the above decree, the trustee in succession has never attempted to create the said $15,000 fund, but has distributed the income to all beneficiaries, including appellants. January 10, 1948, the present litigation arose upon the filing of a petition by the trustee in succession in which he asks for instructions whether he should charge certain expenses which he had incurred in repairing the roof, amounting to $1,149, and rebuilding the foundation and wall at a cost of $4,454.29, of a certain building, - held in trust, to income, and thus to the life tenant under the trust, or to the corpus of the estate, and thus to the remaindermen. Appellants alleged that the 1937 decree, siopra, was erroneous, and that it was the duty of the trustee to build up the fund of $15,000 and to maintain it at that level at all times thereafter and prayed that the court order that said fund be established and maintained in accordance with the testator’s will, and that the cost of the wall and repairs be charged to income and not to the corpus. The trustee alleged that all questions presented were now res judicata by reason of the decree, supra, of the court on April 9,1937, and that the cost of said improvements, permanent in nature, should be paid out of the corpus. Upon a hearing the court found and decreed: “It appearing to the Court that the trustee has asked for instructions as to how to charge the expense incurred in reconstructing the east wall of the building located at the corner of Second and Main Streets and the cost of placing a new roof thereon; that Clara Wooldridge and Peter Wooldridge have raised a question of the construction of the will of Peter Hotze,' deceased, as provided under the terms of the will of Peter Hotze, deceased. “It appearing to the Court that in March, 1937, in a controversy between the same parties hereto, Case No. 51366, after a full hearing, this Court, on April 9, 1937, entered an order with respect to the $15,000 and, in that respect the Court found as follows: (Here is embodied the excerpt from the 1937 decree, supra.) “It further appearing to the Court that the testimony taken in 1937 was introduced as part of the record in this hearing, and it appears to the Court that the condition of the Peter Hotze estate is practically similar to the conditions in 1937; Mr. Morris, the Trustee, at both hearings testified that the estate had considerable cash on hand in addition to the land. It does not appear that there is any substantial difference in the Estate of Peter Hotze in this respect at the time of the hearing-in 1937 and at the present date. “The parties all assented to the order entered in 1937 with respect to the said fund; the $15,000 fund was not set up by the trustee for the purpose of repairs, and all the income has been divided between the beneficiaries since that in accordance with said order; and, under these circumstances the Court finds that all the respective parties to this controversy are bound by said order.” It is, therefore, ordered and decreed: “1. That Emmet Morris, as Trustee, is instructed not to build up the $15,000 fund; 2. That the cost of the roof, amounting- to $1,149, should be charged to income collectible during the year 1948, by the trustee; 3. That the trustee convert sufficient assets belonging to the corpus to pay the cost of constructing- a brick wall, amounting to $4,454.29; 4. That the cross complaint of Clara Wooldridge, et at., be and the same is hereby dismissed for want of equity.” This appeal followed. We hold that the trial court correctly held that the issues now presented are res judicata by reason of the 1937 decree, supra. Appellants were bound by the construction placed on the will by the Court in that decree. It is undisputed that at the time that decision was rendered appellants were parties, consented to that decree, and have acquiesced in the court’s construction of the will for more than 10 years thereafter. In the recent case of Meyer v. Eichenbaum, Executor, 202 Ark. 438, 150 S. W. 2d 958, in which the doctrine of res judicata was considered and applied, we said: ‘ ‘ The chancery court is á court of competent jurisdiction. The judgment there was upon the merits, and the parties are the same in the instant suit as in the original suit. The . matter argued here was an issue and directly adjudicated upon and- was necessarily involved in the determination in the chancery court in the former case. Under all the authorities, where the judgment is upon the merits, the parties the same, the subject-matter the same, and the issue the same, the former judgment constitutes a bar to a new action. “For a discussion of the doctrine of res judicata see McCarroll, Commissioner of Revenues v. Farrar, 199 Ark. 320, 134 S. W. 2d 561. Also, see Cates v. Mortgage Loan & Ins. Agency, Inc., 200 Ark. 276, 139 S. W. 2d 19.” The Supreme Court of Connecticut, in pointing out the grounds for upholding a former decree in which the provisions of a will were construed, in the case of Farnam v. Farnam, (1910) 77 Atl. 70, said: “To the extent that this judgment established the construction of the will, or declared its operative effect in matters concerning which there were or are existing rights and interests, it was a judicial declaration which we ought not to disturb, whatever our conclusions might be upon the questions decided, were they now presented for the first time. The parties interested have for these many years, doubt less, regulated their lives and their affairs in conformity to it, and all those and their privies whose rights as between each other were thereby directly fixed and determined acquired property rights which became vested in them by the court’s action. (Citing many cases.) “We are thus enabled to begin our inquiries with certain premises fixed. In so far as the questions presented to us are but repetitions in another form of those heretofore adjudicated, we have only to reassert what was then said. In so far as our advice is asked for the purpose of having a formal declaration concerning conditions not directly passed upon before, but which involve as factors in them conclusions embodied in the former judgment, or underlying it, it is our manifest duty to accept the former conclusions as fixing the law of the instrument in so far as they go, and thus pursue the only course which can make the operation of the will consistent throughout, and deal with the rights and interests of all parties upon an equal basis.” See, also, 136 A. L. B. 1184. In 57 Am. Jur., § 1034, p. 670, the text writer says: “Application of Rule of Res Judicata. — Problems relating to the conclusiveness of judgments or decrees in actions or proceedings involving the construction of wills may, for the most part, be solved by the application of a few of the universally recognized principles relating to the doctrine of res judicata generally; other things being-equal, a judgment rendered in such an action or suit is as conclusive on the rights of the parties thereto as it would be in any other litigation.” Finding no error, the decree is affirmed. Justice George Rose Smith not participating.

Griffin Smith, Chief Justice. January 2,1947, Florence Schuman purchased from the State Land Commissioner the south 45 feet of Lots 7 and 8, Block 16, Bowman’s Addition to Little Rock. The property forfeited for 1943 taxes, penalty and cost, under an assessment of $560. As certified to the State the amount due was $30.61. In addition to the 1943 item, the purchaser paid taxes for three additional years. In April, 1947, W. P. Wilson, as record owner, brought an action to cancel the Commissioner’s deed, the general allegations being that, in the absence of confirmation, it was voidable because of irregularities. These contentions were upheld in a decree quieting title in Wilson insofar as title was affected by the State deed. Mrs. Schuman has appealed. Wilson acquired the property August 7, 1942, through quitclaim deed from Little Rock Investment Company. Taxes for 1942 were not paid, and when forfeiture occurred the State purchased. The lots were included with other tracts redeemed February 3, 1944, as shown by the treasurer’s receipt. When Wilson dealt with the County Clerk January 28 and procured a redemption certificate and treasurer’s receipt form listing-forfeitures in which he was interested, the 1943 tax books had been certified to the Collector and did not include the property in question. However, Wilson testified that at that time he added to his payment an amount equal to the first installment on these lots for 1943, although the tax books were not available and time for payment did not accrue until the third Monday ijj February. Section 13868 of Pope’s Digest, Ark. Stats. 84-1210, permits redemption within two years by payment of cost and penalty, “and the taxes which would have accrued thereon if such land or lot had been continued on the tax books”. It thus appears that the Clerk’s certificate should have included taxes for 1943. Instead, when the tax books were sent to the Collector, the Clerk listed the property forfeited. A red ink entry by the Collector based upon what was termed a Clerk’s warrant showed a valuation of $560 and taxes of $27.33. This practice of assessing is attacked by appellee, who thinks the warrant system — not sanctioned by law— is such a material variation from the statutes as to invalidate the sale. It is not necessary to pass upon this phase of the controversy. In her brief appellant says: '“Wilson paid the first installment of the 1943 taxes on this property and then allowed it to forfeit for the balance’’. The Land Commissioner’s records show that the lots were sold for a State tax of $22.29, and County tax of $5.04, or $27.33. Credit should have been given for the first installment of one-fourth. Since the sale was for $6.83 more than the unpaid tax, the Land Commissioner’s deed was properly set aside. Affirmed.

Robert A. Leflar, J. While plaintiff (appellee), Mrs. Alta Hicks, was transferring several bottles of Coca-Cola, bottled by defendant, from the original case to an ice box in plaintiff’s restaurant at Booneville, the upper part of her foot was severely cut by flying glass from one of the bottles. The evidence differed as to whether the bottle exploded while it was in plaintiff’s hand, or was dropped by her on the floor and broke there, or was knocked out of. her hand by contact with some other nearby article. Plaintiff’s suit against defendant bottler was brought on the theory that the bottle exploded in her hand because of defendant’s negligence in improperly filling, charging, capping or otherwise preparing it. She offered no affirmative evidence, however, to establish such negligence in defendant, though she gave evidence to establish that she was herself not guilty of any contributory negligence, that no independent causes intervened to break the bottle, and that it exploded while she held it in her hand. After the evidence was completed the defendant requested, and was denied, certain instructions the practical effect of which would have been to direct a verdict for defendant. Under other instructions, the jury returned a verdict for the plaintiff, with damages in the amount of $500, and judgment was entered accordingly. Defendant’s appeal is based on the denial of its request for a directed verdict, plus the granting of one instruction for the plaintiff the net effect of which was to allow the case to go to the jury on the negligence issue. No serious argument is made that the award of damages was excessive. The instructions under which the case was tried were almost entirely offered by the defendant, and were very carefully and accurately phrased so as to call attention to every evidential possibility under which the defendant would not be liable. The jury was told that for the plaintiff to recover she must prove that the defendant was guilty of negligence which was the proximate cause of the injury (Instructions Nos. 2, 6, and 14); that contributory negligence in the plaintiff would bar recovery (Nos. 3 and 5); that if the breaking of the bottle was caused by any act or fact not involving negligence in either plaintiff or defendant the plaintiff could not recover (Nos. 10 and 11); and that inability of the jury to determine from the evidence what caused the bottle to break must result in a verdict for the defendant (No. 12). In the light of the instructions, the jury must be taken to have determined that the breaking of the bottle, and the resultant injury to plaintiff’s foot, were proximately caused not by any negligent act of the plaintiff herself, nor by any non-negligent act of the plaintiff or anybody else, nor by any unascertained fact or event, but rather by the negligence of the defendant in the course of filling, charging, capping or otherwise preparing the bottle. In reaching that conclusion the minds of the jurors must have gone through a process of reasoning to the effect that since the bottle did explode, and since none of the possible explanations just enumerated were acceptable to them, and since negligence in filling, charging, capping or otherwise preparing the bottle was a reasonable explanation of what had happened, the verdict should be arrived at in accordance with that reasonable explanation. Counsel for both sides agree that this jury logic was permissible only if the rule of res ipsa loquitur is applicable to the facts of the case. We have concluded that it is applicable. There are statements in the decisions of this State, and other states, that for res ipsa loquitur to apply it must be shown that the injury complained of was caused by an agency or instrumentality under the exclusive control and management, at the time of injury, of the one whose liability is asserted. Southwestern Gas & Electric Co. v. Deshazo, 199 Ark. 1078, 1088, 138 S. W. 2d 397, 402; Missouri Pac. Rd. Co. v. Shores, 209 Ark. 539, 191 S. W. 2d 580; Thompson, Trustee v. Shores, 209 Ark. 539, 545, 191 S. W. 2d 580, 583; Slack v. Premier-Pabst Corp., 1 Terry (Del.) 97, 5 Atl. 2d 516. Arkansas has never applied this concept to bottles containing carbonated drinks, but some states have. Stodder v. Coca-Cola Bottling Plants, Inc., 48 Atl. 2d 622. Other states have held that when a plaintiff shows that an exploding bottle was handled with due care after it left the control of the defendant, and that the bottle had not been subject to extraneous harmful forces during that time, res ipsa loquitur applies. Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573, 190 S. E. 879; Piacun v. Louisiana Coca-Cola Bottling Co., 33 So. 2d 421 (La. App.); Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S. W. 497, 39 A. L. R. 1001; Honea v. Coca-Cola Bottling Co., 143 Tex. 272, 183 S. W. 2d 968, 160 A.L.R. 1445; Gordon v. Aztec Brewing Co., 33 Calif. 2d 514, 203 Pac. 2d 522. These cases hold that it is only necessary that the defendant have exclusive control of the factors which apparently have caused the injury, and that the instrumentality may have actually passed out of the possession of the defendant at the time of injury without foreclosing application of the rule. This is on the theory that a sound bottle of carbonated water, or other charged liquid prepared for human consumption, will not burst if .carefully handled. If such a bottle containing liquid under pressure does explode, after careful handling, it is probable that the bottler charged it excessively, failed to discover a flaw in the bottle or cap, or was otherwise negligent in preparing it. See Colyar v. Little Rock Bottling Works, 114 Ark. 140, 169 S. W. 810. This court, though it has not heretofore had occasion to apply the res ipsa loquitur rule to exploding bottled beverages, has applied substantially the same rule in other cases involving negligence of a defendant in preparing or supplying foodstuffs and beverages. Thus in Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40, the plaintiff’s wife had died as a result of eating sausages, allegedly poisonous, prepared by the defendant. The court did not apply the res ipsa loquitur rule as such to fbo facts, but said “Appellee’s method of slaughtering animals and preparing and packing meat for distribution and sale were matters entirely within the knowledge of its own employees, and the circumstances proved in.this case were at least sufficient to make a prima facie case and shift to appellee the burden of proving that there was no negligence in this respect.” There are other cases, such as Kroger Grocery & Baking Co. v. Melton, 193 Ark. 494, 102 S. W. 2d 859, where the prima facie rule was not applied. These cases are properly distinguishable by the fact that in them the instrumentality causing the injury was not only not in the defendant’s possession and control at the time of injury, but was actually susceptible to new and intervening causes which might have acted upon it after it left the defendant’s possession, whereas in Drury v. Armour & Co. the sausage was protected by a covering until consumed, so that the exclu siveness of defendant’s control over what caused the injury was actually not interfered with until the sausage was cooked and eaten. Similarly, there are numerous cases in which this Court has held that a plaintiff injured by drinking a foreign substance contained in a bottled beverage has a prima facie case of negligence against the bottler. Coca-Cola Bottling Co. v. McBride, 180 Ark. 193, 20 S. W. 2d 862, and Coca-Cola Bottling Co. of Southeast Arkansas v. Spurlin, 199 Ark. 126, 132 S. W. 2d 828, are typical decisions. In each of these cases the bottled beverage had passed out of the hands of the defendant bottler some time before it was opened and drunk by the injured plaintiff, hut there had been no opportunity for any new negligence, intervening to contaminate the contents of the sealed bottle, until the bottle was opened just before the plaintiff drank from it. In other words, there was a practical continuation of the defendant’s exclusive control over the contents of the bottle up to the time of the alleged injury. In the words of Mr. Justice Holmes, res ipsa loquitur is “merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case.” Graham v. Badger, 164 Mass. 42, 41 N. E. 61. This is the kind of inference that jurors commonly are allowed to make from circumstantial evidence, the only difference being that, when res ipsa loquitur applies, the circumstantial evidence from which the inference is drawn is the fact of the injury itself, plus the few obvious facts which surround the injury hut do not clearly explain how it happened. See (1940) 8 Univ. of Ark. Law School Bulletin 43. The scope of this permissible inference must he carefully limited to exclude cases where the circumstances of the injury do not tend substantially to prove that negligence in the defendant, and in nobody else, caused the plaintiff’s injury. To make certain that the injury has not been caused by somebody else, through some intervening negligence, it is ordinarily required that the instrumentality causing injury have been in defendant’s exclusive possession and control up to the time of the plaintiff’s injury. That requirement appears to have been satisfied when the plaintiff shows, as in the instant case,- that there was no opportunity for the content or character of the charged bottle to have been changed from the time it left defendant’s hands until it exploded. The Circuit Court’s judgment for the plaintiff is affirmed. The Chief Justice and Mr. Justice Frank Gr. Smith, dissent.

Per Curiam. This is an original proceeding in this Court, and embraces three separate motions filed by the same party, each seeking a writ of procedendo ad' judicium. The petitioner here is the plaintiff in an action pending in the Circuit Court of Howard county against the Campbell Soup Company. The respondent is the Judge of the Ninth Judicial Circuit, which includes Howard county; and the prayer of each motion is that this Court require the respondent to adjudicate petitioner’s case in the Circuit Court. We forego any discussion of (1) the history and original functions of the writ of procedendo ad judicium, and (2) whether the writ under our present Code practice should be styled under another name; because this Court, under our Constitution (Art. VII, § -4) has supervision over all inferior courts, and we consider that by whatever name the petition here is styled, consideration of the relief sought by the petitioner is within our constitutional power. On November 7, 1947, petitioner filed his complaint in the Howard Circuit Court against the Campbell Soup Company alleging it to be a corporation organized under the Laws of New Jersey, and domiciled in that State. The complaint sought judgment in personam against the defendant. I. First Attempted Service. Service on the defendant was attempted under § 1374, Pope’s Digest — i.e., by serving summons on the corporation officers at its home office in New Jersey. When the Circuit Court (under the authority of § 8226, Pope’s Digest) held such service insufficient to support a judgment m personam, the petitioner filed in this Court on March 29, 1948, his first motion for wait of procedendo ad judicium. We denied that motion by a per curiam order of April 12, 1948. II. Second Attempted Service. Petitioner then had a summons against the Campbell Soup Company served bn the Secretary of State of Arkansas, based on the premise that, under Act 347 of 1947, the Campbell Company was capable of being sued in actions in personam in this State. Unless said Act 347 of 1947 is applicable, then this service must also fail. The Circuit Court held this service to be insufficient, and petitioner then filed in this Court — on June 26,1948 — his second motion for writ of procedendo ad judicium. Attached to that motion there is what purports to be the evidence heard in the Circuit Court, and on which the Court held the service to be deficient. Assuming, but not deciding, that this evidence is p.roperly before us, and that this is the appropriate method for presenting the issue, the transcript reflects that a traveling salesman of the Campbell Soup Company solicited orders from the Stuart Grocery Company in Nashville, Arkansas; that such orders were forwarded by the salesman to the home office of the Campbell Soup Company in New Jersey for acceptance or rejection; that sometimes the Stuart Grocery Company sent its orders direct by mail to the Campbell Soup Company in New Jersey; that upon acceptance of any order by the Campbell Company at its home office in New Jersey (whether the order was obtained by the salesman or sent direct by mail as aforesaid), the shipment from the Campbell Soup Company to the Stuart Grocery Company was packed, marked, and duly identified as for that party, and placed in a railroad carload shipment containing goods for distribution to other purchasers in the Nashville freight territory; that the entire carload moved by rail from New Jersey to the Hunter Transfer Company at Texarkana, Arkansas; that this last-mentioned concern opened the car and then sent to the Stuart Grocery Company its shipment and likewise sent other purchasers their shipments from the said railroad car. In short, the Hunter Transfer Company broke the shipment to less-than-carload lots — all of which was evidently a freight saving device. Stuart Grocery Company paid direct to Campbell Soup Company in New Jersey. Because of the activities of the Hunter Transfer Company in Texarkana, Arkansas, petitioner claims that the Campbell Soup Company was doing business in Arkansas, and therefore capable of being brought into the Arkansas courts by service of process on the Secretary of State under Act 347 of 1947, or service on the State Auditor under § 2250, Pope’s Digest. The cases of Crawford v. Louisville Silo & Tank Co., 166 Ark. 88, 265 S. W. 355 and Citizens Union National Bank v. Thweatt, 166 Ark. 269, 265 S. W. 955 are authority for our holding against petitioner’s contention. In those cited cases, just as here, a non-domesticated foreign corporation accumulated several shipments into one carload shipment to an Arkansas point, where an agent of such corporation distributed the individual shipments to the various purchasers ; and we held that such shipments were inter-state commerce and did not constitute “doing business” in Arkansas by the foreign corporation within the purview of our statutes. Act 347 of 1947 was before this Court in the recent case of Gillioz v. Kincannon, 213 Ark. 1010, 214 S. W. 2d 212, and reference is made to that opinion for a discussion of the said Act. Petitioner claims that Act 347 of 1947 changed the rules of law announced in the Crawford-Louisville and Citizens Bank-Thweatt cases, supra, and petitioner urges that the said Act allows the Campbell Company to be sued in a case such as this one, since (1) Hunter Transfer Company was the agent of the Campbell Company to break and subdivide the carload shipment, and (2) such act by the Hunter Transfer Company was done and performed in the State of Arkansas. This contention seeks to pose the difficult question as to the applicability of the rule announced by the U. S. Supreme Court in such cases as International Shoe Co. v. Washington, 326 U. S. 310, 90 L. Ed., 95, 66 S. Ct. 158, 161 A. L. R. 1057; Kentucky Whip & Collar Co. v. Illinois C. R. Co., 299 U. S. 334, 81 L. Ed. 270, 57 S. Ct. 277; and Standard Dredging Co. v. Murphy, 319 U. S. 306, 87 L. Ed. 1416, 63 S. Ct. 1067. These cases hold (in the language of International Shoe Co. v. Washington, supra): “ . . . that Congress, in the exercise of the commerce power, may authorize the States, in specified ways, to regulate interstate commerce or impose burdens upon it.” The question now becomes, whether a holding by us would be within the rule of such cases, if we should hold that the acts performed by the Hunter Transfer Company for the Campbell Company — even though in interstate commerce — -were sufficient to support substituted service in actions in personam in the Arkansas courts. We pass this question as one of unnecessary speculation. Whether the Legislature could validly enact such legislation is not for us to decide at this time. We hold thát Act 347 of 1947 was not intended to change the rule concerning the breaking of the journey of interstate shipments as announced in the cases of Crawford v. Louisville Silo & Tank Co. and Citizens Bank v. Thweatt, supra. Until such a change of the rule in these cases be attempted by the Legislature, we need not speculate on its constitutionality. Also, without attempting now to delineate the permissible limits to which a State may go'in using substituted service as the basis to support a judgment in personam, it is sufficient in this opinion to say — and we so hold — that the shipment of the Campbell Company in the case at bar preserved its interstate character until the shipment reached the Stuart Grocery Company in Nashville, Arkansas, and that the acts of the Hunter Transfer Compaq, even if it should he said to be an agent of the Campbell Company, were transactions in interstate commerce, and not within the scope or contemplation of Act 347 of 1947. In short, we hold the Crawford-Louisville Silo and Citizens Bank-Thweatt cases to be ruling in the case at bar; and therefore we deny the petitioner’s motion filed in this Court on June 26, 1948. III. Third Attempted Service. While there was still pending before this Court the motion involving the second attempted service, the plaintiff in the Circuit Court made further attempts to obtain service on the Campbell Soup Company. He pursued the provisions of § 532, et seq., Pope’s Digest, i. e.: the plaintiff made affidavit that the defendant was a non-resident; a bond was filed; a writ of attachment was issued; warning order was published; and an attorney ad litem was appointed, who duly reported. On the writ of attachment the sheriff made a return that no property of the Campbell Soup Company was found on which to levy the attachment; and, based on such return, the Circuit Court refused to render judgment for plaintiff. Thereupon the petitioner filed in this Court — -on February 1, 1949 — his third motion for writ of procedendum ad judicium. In 7 C. J. S. 388, and in 6 C. J. 213, the recognized holdings are summarized in this language : “In an attachment suit, where there is no personal service on defendant, a levy or its equivalent is essential to give the court jurisdiction to proceed to judgment, >> Based on the holdings as summarized by the quoted statement, the Circuit Court correctly refused to render judgment for the plaintiff in the attachment proceeding, since there was no property seized upon which to base the attachment. Conclusion: Each of the motions for writ of procedendum ad judicium is denied; and, since we are denying the motions, we reserve the question, whether the petitioner’s correct course was to file such motions here, or to appeal from a final order of dismissal. Summons was also served on the State Auditor under § 2250, Pone’s Digest.

Frank Gr. Smith, J. The question presented by this appeal is whether Act 46 of the Acts of 1935, p. 90, legalizing pari-mutuel betting on horse races violates § 14 of Art. 19 of the State Constitution and is void for that reason. This section of the Constitution reads as ■ follows: “No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed.” This Act 46 of 1935 created the Arkansas Racing Commission, and, among other things, provided that the Commission shall promulgate rules and regulations for horse racing and for the issuance of permits to operate race tracks and licenses to hold racing meetings under the terms and conditions therein specified. Section 14 of this Act reads in part as follows: “Any • license under the provisions of this Act, conducting a horse racing meeting, may provide a place or places in the race meeting grounds or enclosure at which he, they or it may conduct and supervise the pari-mutuel or certificate system of wagering by patrons on the horse races conducted by such license at such meeting, and such pari mutuel or certificate method of wagering upon such horse races held at said race track, and within such race track, and at such horse racing meeting, shall not under any circumstances if conducted under the provisions of this Act, be held or construed to be unlawful, other statutes or parts of statutes of the State of Arkansas, to the contrary notwithstanding.” The Act is a lengthy and very comprehensive one, and contains specific directions for the exercise of the license which the Commission is authorized to issue. Since the passage of the Act in 1935, the Racing Commission has issued annually a permit or license to hold racing meetings under its provisions in the City of Hot Springs, and it is sought by this suit to restrain the Commission from renewing this license or permit. The argument is made that the Act is violative of the State’s public policy, and that it legalizes what would otherwise be an unlawful act. In this connection it may be said that an Act was initiated and submitted at the General Election held in 1944 to repeal this Act, which was defeated by a large majority. As to what shall be the State’s public policy, it may be said that this is a question which the General Assembly may decide. Upon the authority of Lewis’ Sutherland Sta. Const., Vol. I, 136, we said: “As to whether a .law is good or bad law, wise or unwise, is a question for the Legislature, and not for the Courts. ’ ’ State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611. We may therefore consider only the question of the constitutionality of Act 46, and rules have been often announced by this and other Courts to guide the approach to that question. In the recent case of Fugett v. State, 208 Ark. 979, 188 S. W. 2d 641, we said: '“The wisdom and propriety of statutory enactments are matters to be determined solely by the legislative branch of the government. Courts are not authorized to strike down a law enacted by the General Assembly unless it clearly appears that the law contravenes some provision of the constitution; and, .in case of doubt as to the con stitutionality of a statute, the doubt must be resolved in favor of the validity of the law.” Many of our cases are cited in support of the statement just quoted, to which an indefinite number from other jurisdictions could he added. Unquestionably Act 46 has authorized and legalized and possibly given encouragement to a form of gambling, but the question here presented is whether it has done so by authorizing a lottery. If it does, the Act is unconstitutional, as the provisions of the Constitution herein-above quoted denied the G-eneral Assembly the power to authorize a lottery. So the question for decision is whether Act 46 authorizes a lottery. The State Commissioner of Revenues is made the Secretary of the Racing Commission, and in the discharge of the duties imposed upon him he visited the track where the races are held and explained in detail how the betting thereon is conducted, and there appears to be no question but that the betting is conducted in a manner authorized by the Act. The Court below held that a lottery had not been authorized and was not being conducted and dismissed the suit, from which decree is this appeal. This finding was based upon the testimony of the Revenue Commissioner, which is undisputed and is to the following effect: The permit was issued to the Oaklawn Jockey Club of Hot Springs. The American Totalizator Company, which is a separate corporation from the Oaklawn Jockey Club, has a contract with the club to set up the mechanical equipment for the purpose of issuing and selling tickets to persons wishing to bet through designated windows in what is called the pari-mutuel room. There are ticket sellers at each window who are employees of the Totalizator Company. Under the law, ten per cent, of the proceeds of the sale of these tickets goes to the Jockey Club and five per cent, to the State, and the Totalizator Company is paid out of the Jockey Club’s part of these proceeds. The Totalizator Company owns the machines which are used in betting and they are not for sale. At one window tickets are sold on horses to win, that is, to cross the finish barrier first. At another bets are made on a horse for a place, that is, to run second; and at another window, bets are made that a horse will show, that is, run third. At still another window bets are made which are said to be “across the board” or combinations, that is, that the horse bet on will finish first, second or third. Bets are received at still another window called a Daily Double; that is, the bettor names the horse which will win the first race and another horse which will win the second race, and if the horses thus bet on win both the first and second races the person thus betting is said to have won the Daily Double. This pool is independent of all the other pools and relates only to the first and second races. When a person wishes to purchase his ticket at a designated window the seller pushes a button similar to a cash register and the ticket at that time is printed by an individual machine designating the number of dollars paid for the ticket, and it is registered on an individual calculator which is there and is automatically transferred to what is called a master control totalizator. All of this takes place during the time the tickets are being sold for a particular race and they are sold before the beginning of that race. No tickets are sold in the second race until the first race has been run, with the exception of the Daily Double, nor on the third race until the second race has been run, and so on with the remaining races. Altogether eight races are run each day. ■ When a race is about to be run the machines are locked with a master key by the racing stewards who have a box in the stewards’ stand and the betting windows are not reopened until a calculation is made of all the money that has gone through the individual machines and the totalizator has figured the amount of money in the Win, Show, and Place pools. From the total that has been placed in all the pools, fifteen per cent, is deducted, of which the Jockey Club gets ten per cent, and the State, five per cent. The Jockey Club procures the horses that are to run at the racing meet, and there were about 1,200 of these during the preceding meeting. Some of these are not entered or run at any race during the meeting, but are kept there for training purposes. Others will run in more than one race during the meeting. The owners bring their horses to the meeting and are accompanied by their trainers, who keep the horses in condition and accustom them to the tracks on which the races will be run. The horses are ridden by riders called jockeys, whose training, skill and ability are known to the owners who compete for the prizes offered in each race, and it is these prizes paid in money which compensate the owners for racing their horses. They receive no part of the money bet on the races. Admission fees to the race track are charged, but the owners of the horses have no share therein. After the deduction of the fifteen per cent, above mentioned has been made the balance in each pool is paid to the holders of tickets bet on the horses in the respective pools. The bettors do not bet against each other. . The Act makes it unlawful to do so. The bet is between the bettor and the Jockey Club or the Association. Horses are selected for entrance in a particular race by the Association, and the horses’ names are listed or lined up on a daily racing card, and there is sold a racing form which shows the weight carried by each horse and its handicap depending on the past performances of the horse in previous races at that or other tracks. This weight handicap is intended in some measure to equalize the speed of the horses, and the amount thereof depends upon the horse’s record in prior races run within the preceding twelve months. The owners have trainers who are skilled in handling horses with the purpose of increasing their speed and making them more responsive to the control of the jockeys. Many persons attend the races for the thrill of witnessing the horses as they cross the finish line, and add to the thrill and interest by betting on some horse without knowledge of the information disclosed by the form sheets. For instance, a lady might bet the minimum amount permissible on a horse having the same name as her kitchen range. But sources of information now are provided, as stated above, by which bettors may bet with more discrimination and with improved chances of selecting or picking a winner. These form sheets designate whether upon previous performances a particular horse is a fair mud runner, a good mud runner, or a superior mud runner, which information is of value when the track upon which the races are to be run on the day of the issue of the form sheet is muddy. Followers of racing who for long periods of time have studied the records of the horses choose as their selections the horse which in their opinion will be most likely to win and these are for sale and may be purchased at the track. Neither the Jockey Club nor anyone connected with it fixes the odds which will prevail on any horse. The bettors themselves do this and it is done through the number of bets made and the amount thereof-on particular horses. The animal equation enters into these races just as the human equation enters into sports between men and women. A horse may run better on one day than on another, depending on the condition of the horse, and it is the function of the trainer to see that the horses are in the best possible condition and properly trained. The element of chance necessarily enters into these races, but it is by no means controlling. Other' elements of more importance are the condition and the power of endurance of the horse and the skill and daring of its rider. Some jockeys win more races and a higher percentage of the races in which they participate than others. The services of these jockeys are of course in greater demand by the horse owners who must win the races to obtain the money prizes for which they race. Under the facts above stated, is the horse race a lottery conducted under the pari-mutuel system herein de scribed? It must be admitted that courts have differed in their conclusion, but an examination of many of these cases leads to the conclusion that the great weight of authority is that such races are not lotteries and we think the sounder reasoning supports that conclusion. Lotteries are of ancient origin, some conducted for benevolent purposes and others solely for gambling. They became so common and their influence so pernicious that efforts were made to prohibit them. In every Constitution we have had the General Assembly has been denied the power to authorize their operation. They were singled out and not treated as other forms of gambling. Except as to lotteries, the Constitution left to th^ General Assembly the question of permitting, prohibiting or regulating gambling, and this long before the parimutuel system of conducting horse races had been thought of. So .the question remains for decision whether the betting which has been licensed under the provisions of Act 46 of 1935 is a lottery. The inhibitions of our Constitution against authorizing a lottery would not make that a lottery which was not so in fact. The word lottery is derived from the word lot, one definition of which as given in Webster’s New International Dictionary is: “An object used as one of the counters or checks in determining a question by the chancefall or choice of one or more of them; a sort. See Sortilege, Divination. In drawing lets each competitor may place his lot (marked) in a receptacle from which a disinterested person draws one, on the owner of which the chance falls; or, each competitor may draw one of a series of lots, the chance falling upon the person who draws one previously specified. In casting lots, the lots are placed by the competitors in a receptacle which is then shaken until one falls out, the chance falling on its owner. ’ ’ • The word lottery is defined by the same authority as follows: “A scheme for the distribution of prizes by lot or chance; esp., a scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, usually as determined by the numbers on tickets as drawn from a lottery wheel.” In our case of Burks v. Harris, 91 Ark. 205, 120 S. W. 979, 23 L. R. A., N. S. 626, 134 Am. St. Rep. 67, 18 Ann. Cas. 566, the following definition was given: “A lottery is a species of gaming, which may he defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize.” This definition was taken from 25 Cyc. 1635. It appears therefore that to constitute a lottery it is essential not only that the.element of chance is present, but also that it controls and determines the award of the prize whatever it may be. In the chapter on Gaming, 12 R. C. L. 716, § 14, it is said: “A game of chance is said to be such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill and adroitness have honestly no office at all, or are thwarted by chance. ’ ’ It was there further said: “The test of the character of the game is not whether it contained an element of chance or an element of skill, hut which of these is the dominating element that determines the result of the game. ’ ’ In a note to the test just quoted the case of People v. Lavin, 179 N. Y. 164, 71 N. E. 753, is cited as having been annotated in 1 Ann. Cas. 165, 66 L. R. A. 601. See, also, 27 C. J. 968, Chapter Gaming, §§ 4, 5, 6 and 7, and 34 Am. Jur. Title Lotteries, § 6, p. 649. The question whether betting on horse races in which • the pari-mutuel system is employed is the subject of the annotation in 52 L. R. A. 51 and 85 A. L. R, 605. The 'briefs of opposing counsel in the case last cited collect other annotated cases from which it appears to have been more frequently held that the pari-mutuel system of wagering does not constitute a lottery. An opinion would he of interminable length which undertook to review all of them. The annotated case in 85 A. L. R., supra, is that of People v. Monroe, 349 Ill. 270, 182 N. E. 439. In that case, with one member of the Court dissenting upon a ground not stated, the Supreme Court of Illinois held that a statute not essentially different from our Act 46 had not authorized a lottery. In reaching the conclusion stated it was there said: “ Every event in life and the fulfill men! of every lawful contract entered into between parties is contingent to at least some slight extent upon chance. No one would contend, however, that a contract knowingly and understandingly entered into between two parties is a gaming contract merely because its fulfillment was prevented as the result of the befalling of unknown or unconsidered forces, or by the issue of uncertain conditions, or by the result of fortuity. The parimutuel system of betting does not come within the definitions given above. (In Webster’s Dictionary, which we have hereinabove quoted.) While the amount of money to be divided is indefinite as to dollars and cents, it is definite in that the amount of money to be divided is the total stakes on the winning horse, less a given percentage to the management. The persons among whom the money is to be divided are not uncertain, as they are ‘those who bet on the winning horse. ’ The winning horse is not determined by chance, alone, but the condition, speed, and endurance of the horse, aided by the skill and management of the rider or driver, enter into the result. ’ ’ As showing that a horse race is not a game of chance 'the Court pointed out that in such races the horses engaged in the race are subject to human guidance and management, and it may be added that whip and spur are used to incite the horses to put forth their best efforts to win. The canes cited and relied upon as supporting the contention that a lottery has been authorized are State v. Ak-Sar-Ben, 118 Neb. 851, 226 N. W. 705, and Pompano Horse Club v. Florida, 93 Fla. 415, 111 So. 801, 52 A. L. R. 51. The Nebraska opinion above cited, delivered in 1929, supports appellant’s contention, but it may be said of it that this opinion led to the adoption of an amendment to the Constitution of that State, § 24, Art. Ill, which nullified the opinion. The Pompano case, supra, did not involve the question of whether a horse race was dependent on chance or not, the issue there being whether betting on a horse race was prohibited by the Florida game statute. The Court held that it was and so we would hold if the question was merely whether it was gambling. The Florida Court said: “The question before us is whether or not the betting, selling and redeeming of certificates in the manner and for the purpose stated constitutes gambling or a game of chance.” The Court merely held that it- was gambling, and so it is. So, also, is betting by the pari-mutuel system gambling, but it is’ not a lottery, and Act 46 provides that such betting shall not be unlawful. The use of the pari-mutuel machine does not make the betting a lottery, if it is not otherwise so, as it makes' no determination of what horses are winners. It is merely a wonderful machine which expedites calculations which could laboriously be made without its use. Its use in no manner affects the results of a race as it merely calculates the results of the betting after the races have been run and the respective winners announced. We conclude, therefore, that while the element of chance no doubt enters into these races, it does not control them, and that there is therefore no lottery. The decree so holding is affirmed. .- This suit was originally filed by James MacKrell who did not prosecute an appeal from the decree, but one O. D. Longstreth, Jr., to save the appeal, filed an intervention-in the court below alleging the same right to prosecute the suit which MacKrell had and prayed in the Court below an appeal and caused a transcript of the proceedings to be prepared, which he filed in this Court and his appeal was granted by the Clerk of this Court. Grieein Smith, C. J. and Robins, J., dissent. George Rose Smith, J., not participating.

Holt, J. November 16, 1948, appellant, Emma Boyd, a Negro woman, was tried on an indictment charging her with the crime of receiving stolen goods. The jury failed to agree, a mistrial was declared, and thereafter on December 1st, she was again placed on trial, which resulted in her conviction and a prison term of eighteen months in the Penitentiary imposed. From the judgment is this appeal. For reversal, appellant presents in her motion for a new trial twenty-one assignments of alleged errors. While she argues but'two of her assignments, this being a felony case, she waives none of her alleged errors by not arguing them here. Briefly, the evidence shows that appellant operated a cafe and sold beer. Percy Alsup, a convict on parole, was employed by the Fordyce Country Club as caretaker, after having served a part of a ten-year term in the state penitentiary. Following his parole, he married appellant’s cousin, Ozaree Grimes. It was undisputed that Percy stole some chairs, silverware and dishes, the property of the Country Club, of the value of approximately $75, some of which he sold to appellant. Alsup testified that appellant and his wife, Ozaree, were with him at the time of the theft, that appellant knew the property was stolen and aided and abetted him, that Ozaree asked him not to take the' property and warned that he would get in trouble. Aided by a search warrant, an officer went to appellant’s cafe and when he informed her of his mission, she readily produced from under the counter some dishes and some pieces of silverware. She also produced four chairs, but denied knowing that any of the property had been stolen. In these circumstances, all conceded that Percy was an accomplice, but whether Ozaree was also an accomplice was a question that should have been submitted to the jury. Under our statute, Ark. Stat., (1947), § 43-2116, an accused may not be convicted on the uncorroborated testimony of an accomplice. The testimony of Ozaree, which tended to corroborate that of her husband, was material, and appellant was entitled to have the jury instructed substantially in the language of the statute, supra, had she so requested (Miller v. State, 155 Ark. 68, 243 S. W. 1063), and she was also, upon request, entitled to an instruction defining the term of “ac complice.” See Simon v. State, 149 Ark. 609, 233 S. W. 917, for the definition. In the present case, it is doubtful if there was any substantial evidence that tended to corroborate Percy and Ozaree, had the jury, under proper requested instructions, found that Ozaree was also an accomplice. She was a State witness and, in the circumstances, appellant was entitled to cross-examine her thoroughly, within reasonable bounds, on all material matters. The court denied appellant this privilege and in so doing, there was abuse of discretion. Appellant’s sixth assignment provides: “The court erred in not permitting defendant to prove that Ozaree Alsup would testify to the jury that ‘since she has been out of jail she has been in a very nervous condition’ and said, ‘Don’t let the Sheriff and Percy Alsup get me.’ Counsel for defendant stating, ‘That is a circumstance I want to get before the jury and argue to the jury.’ I would like to cross-examine her on whether or not the Sheriff possibly told her, ‘Now you get in and help me send Emma Boyd to the penitentiary and yon will not have to be tried,’ defendant saving exceptions.” In this connection, the record reflects: “By the Court: Let the record show that E. B. Kimpel, Jr., rep- • resents the defendant, with the other counsel, and that be especially represents the witness, Ozaree Alsup, and that the Court has directed that either side may talk to any witness and Mr. Kimpel made his objections and exceptions at the time of the ruling. On the basis of this, Mr. Kimpel is excluded from the Sheriff’s office during the questioning of his client, Ozaree Alsup, by the Prosecuting Attorney before the trial, over Mr. Kimpel’s objections and exceptions. . . . Whereupon, the State presents the following witnesses before the Court and the jury.” Among these witnesses, as noted, was Ozaree. She was at the time charged with the same offense, lodged against Percy, and was free on bond. “By the Court: Let the record show that her testimony shows and clearly exonerates her of any part of this crime and this statement is made outside of the hearing of the jury and the Court is convinced she had nothing to do with this crime and is not guilty of any part of this crime; that she merely told what happened- and over her protest the theft was committed; and that she had not testified to anything that would incriminate her at all whatsoever and her statement shall never be used in any prosecution in regard to this thing against her. “Objection overruled over the objections and exceptions of the witness and defendant. “Whereupon, at the request of counsel for defendant, the Court retires to Chambers and the following proceedings are had: By Mr. Sparks: Ozaree Alsup will testify that since she has been out of jail that she has been in a very nervous condition and made the statement: “Don’t let the Sheriff and Percy get me.’ That is a circumstance I want to get before the jury, argue to the jury, the circumstance that she was possibly — I would have liked to cross-examine her. ' The Sheriff probably told her, ‘Now you get in and help me send Emma Boyd to the penitentiary and you will not have to be tried.’ “The Court refuses to permit counsel for defendant to cross-examine the witness, Ozaree Alsup, on this point, over the objections and exceptions of the defendant. ’ ’ As indicated, we think the court erred in denying appellant the right to cross-examine Ozaree, in the manner requested. Accordingly, the judgment is reversed and the cause remanded for a new trial.

Minor W. Millwee, Justice. Appellee brought an action and recovered judgment against appellant in the Malvern Municipal Court for damages to personal property in the sum of $150. Appeal to circuit court resulted in a verdict and judgment in favor of appellee for $75 and this appeal follows. Appellant’s contention, that the judgment is void for lack of jurisdiction of subject matter, must be sustained. The municipal court has jurisdiction concurrent with justices of the peace and the circuit court in actions for damages to personal property where the amount in controversy does not exceed $100. Ark. Stats., (1947), § 22-709. The jurisdiction of a court is determined by the amount sought to be recovered and not merely by the amount of the actual recovery. As the damages claimed exceeded $100 and arose out of an action for damages to personal property, the municipal court had no jurisdiction over the subject matter of the controversy, and the circuit court acquired none on appeal. Article 7, § 40, Constitution of 1874; St. Louis Southwestern Ry. Co. v. O’Neal, 163 Ark. 193, 259 S. W. 393; Hively v. Jones, 178 Ark. 1127, 13 S. W. 2d 612. The question of jurisdiction of the subject matter cannot be waived, but is always open and may be raised for the first time on appeal. Sibley, Receiver, v. Leek, 45 Ark. 346; Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706; Strahan v. The Atlanta National Bank, 206 Ark. 522, 176 S. W. 2d 237. The judgment is accordingly reversed, and the trial court being without jurisdiction, the cause is dismissed without prejudice.

Robins, J. Appellant sought in the lower court to he adjudged owner, as tenant in common with appellee, of an undivided one-sixth interest in a 280-acre farm in Jefferson county, and to have partition and an account ing as to rents. From a decree dismissing his complaint for want of equity appellant prosecutes this appeal. The land involved was owned in his lifetime by S. L. Woolfolk, who died intestate in 1934. Woolfolk had six children, of whom appellant was one. S. L. Woolfolk had executed a second mortgage on the land to appellee, The McDonnell Company, to secure an indebtedness which amounted on February 22, 1936, to $11,702.81. T. N. Woolfolk was appointed administrator of the estate of S. L. Woolfolk, deceased. Appellee filed suit on February 22, 1936, to recover judgment on its debt and to foreclose its mortgage and made as defendants the administrator of the mortgagor’s estate and all of his heirs, including appellant. It is appellant’s contention that he was not served with summons in that suit and that the decree of foreclosure rendered therein on November 3, 1936, as well as subsequent sale and conveyance by a commissioner appointed by the court, was therefore ineffective as to his inherited share of the land. A summons, introduced in evidence, shows service on certain of the heirs of S. L. Woolfolk in Jefferson county, and a “non est” return as to appellant, the sheriff stating in the return that he was advised that; appellant was in Little Rock. Other heirs were summoned by warning order. It was shown that on September 19, 1936, the lower court made an order appointing a receiver to take charge of the land and this order recites: “The court finds that reasonable notice of this hearing has been given to the defendants.” (Italics supplied).- Appellant testified that he first learned of the foreclosure suit in August, 1937; that at that time he talked to Mr. McDonnell, president of appellee company; “I asked him if it was possible that we could redeem the land”; that the foreclosure decree had already been rendered at that time. W. A. McDonnell, president of appellee company, testified that after the foreclosure suit was filed appellant came to his office at Little Rock several times to ask postponement of the suit in order to give him and other defendants time to raise the debt; that appellant had full knowledge of the suit; that appellant discussed the suit with him several times before the decree and also afterward, on each occasion wanting to repurchase with a small down payment. Howard L. Hunter testified that during the foreclosure proceeding's against the Woolf oik property he was manager and secretary of appellee company; that appellee has been in possession of the land since foreclosure and that appellant knew of it; that appellee had made improvements on the land; that he remembered about appellant coming to see him and talking to him about re-financing the debt and that this occurred before and after the decree of foreclosure was rendered. In the decree of foreclosure no mention of appellant is made, though manner of service of process against each of the defendants, other than appellant, is described, but the decree contains this recital: “That all of the defendants have been personally or constructively summoned. ” By the terms of the decree appellee company was given judgment against the administrator for the amount of the debt; and a foreclosure of the lien of the mortgage was ordered in the usual manner, the land being described in the decree, with no mention of any interest therein, less than the whole, being ordered to be sold. The instant suit was filed on January 14, 1947: While appellant testified that he did not learn of the foreclosure proceeding until in 1937, the year after the decree was rendered, there was abundant evidence to justify the lower court in finding that appellant knew of the foreclosure suit before the decree was rendered. Appellant was all the while living in Little Rock, and his brother, the administrator, and other members of the family served with summons, were living in Jefferson county. It is difficult to believe that appellant was not fully cognizant of the pendency of the suit, as the testimony on behalf of appellee shows that he was. Appellant cannot be heard to say that he did not understand that his interest in the land was involved in the foreclosure. He was made a party to that suit, and this fact was sufficient to put him on notice that an attempt was being made to foreclose his interest. Furthermore, the administrator of the estate-of S. L. Woolf oik, deceased, was made a party and a judgment rendered against this administrator which would have authorized a sale of the land being made under order of the probate court. Appellant was thus put on notice that a sale of the entire interest — not merely a five-sixth interest therein — was being sought by appellee. Appellant waited for' more than nine years after he knew of the suit to which he was a party, and for more than nine years after appellee received a deed conveying to it the land — during’ which period appellant has been excluded from possession and from enjoyment of any part of the rents — before he asserted his right to any interest in the land. While ordinarily the possession of one tenant in common is not adverse to the rights of another tenant in common, this principle does not help the position of appellant because it was shown that the possession of appellee has all the while been under a claim of entire and exclusive ownership. Hill v. Cherokee Construction Company, 99 Ark. 84, 137 S. W. 553; Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96. Even if we assume — as appellant contends — that appellant became a co-tenant with appellee upon the completion of the foreclosure, nevertheless there are ample facts in the record here to support the chancery court’s decree that appellant is barred. The facts here bring this case within the rule of such cases as Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521; Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45; and Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537. The decree of the lower court is affirmed.

Griffin Smith, Chief Justice. By information filed August 4,1948, the Prosecuting Attorney for Lee County charged that on August 2d Wesley Hildreth raped a designated female person. The accused appealed from a judgment inflicting the death penalty and procured reversal on the ground that the-trial Court erred in refusing to hear testimony relating to his petition for a change of venue. Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622. When the cause was called on remand in April, 1949, the defendant again asked that the venue be changed, resulting in a direction tha,t trial should be in Phillips Circuit Court, at Helena. In appealing, the following statements appear in counsel’s brief: “Appellant, a Negro, was convicted of rape and sentenced to death. The prosecutrix was a young white woman. Appellant did not testify, and no evidence was offered in his behalf. Questions involved are, (1) whether the evidence warrants death where the prosecutrix admits she made no alarm and did not see appellant with any weapon which might produce fear and submission, and (2) whether the Supreme Court may reduce the punishment assessed by a jury”. In support of his plea for substitution of life imprisonment for electrocution, appellant’s counsel says: “ . . . We wish to emphasize the fact that the consequences of this crime are within the realm of mirn-mum damage to the community and to the prosecutrix”. First — Sufficiency of the Evidence. — The victim of appellant’s lust was 21 years of age, married, and the mother of a three-months-old child when the attack occurred at the rural tenant home between Marianna and Helena, three or four miles from, the paved highway. The undisputed evidence is that the prosecutrix was attending to her household duties the morning of August 2d when appellant — whom she had never before seen— entered through an open kitchen door; and, as the witness explained it, “he was standing right in front of me when I first saw him”. The baby was sleeping in an adjoining room. Appellant’s first question was, “Where is your husband?” Without waiting for an answer, appellant went into the baby’s bedroom, looking backward as he walked. The mother, thinking the baby might be in danger, followed. Appellant grabbed her and. warned that if she screamed he would kill her. He then said, “Did you ever have a date with a colored man?” When the answer was “No”, he remarked, “Well, this is one time you are going to have one”. Efforts of the young mother to free herself were unavailing. She was “dragged backward to the bed”, where the criminal act was consummated. In leaving, appellant warned that if the woman told her husband what had occurred “I will return and kill you”. Disregarding the threat, the prosecutrix ran perhaps a quarter of a mile to where her husband was working in a cotton field. Several hours later treatment was given by a physician, who verified assertions that force had been used. When arrested, appellant admitted to a deputy sheriff that he “had done it”. There was corroborating testimony, with identification. The jury, believing the injured woman and other witnesses, found that violence through fear prevented outcries, the absence of which is emphasized in urging by inference that there was want of resistance, with tacit consent. It is difficult to see how any verdict other than one of guilt could have been returned. The fact-finders, through instructions, were told that they could fix punishment at life imprisonment, or death. The members of that body must have read, from the expression and demeanor of witnesses, circumstantial and affirmative conduct which satisfied them beyond a reasonable doubt that the act complained of was beyond the borderline of extenuation. Second — Supreme Court’s Power to Reduce Punishment. — The right to fix punishment is primarily a duty enjoined upon juries. It is only in cases where evidence does not sustain the degree of crime expressed in the verdict, but does support a lower finding, that an appellant’s plea for partial relief may be successful. Third — “Consequences to the Community”. — Text writers on criminal law, and court decisions, deal with two classes of crime. Those to which wrong is imputed only because lawmaking bodies have placed them in a forbidden category are spoken of as mala prohibita; while acts that are inherently wicked are said to be mala in se. In the latter class we find robbery, arson, murder, manslaughter, assault, . . . and rape. Thus, public policy in respect of this most detestable crime found severe expression long before the existence of Arkansas was even remotely contemplated, for in Deuteronomy it was said that “If a man find a betrothed damsel in the field, and the man force her, and lie with her, then the man only that lay with her shall die; but unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death, . . . for he found her in the field, and the betrothed damsel cried, and there was none to save her.” — ch. 22:25, 26, 27. Blackstone tells us that the civil law punished ravishment with death and confiscation of goods. Like penalty was exacted by ancient Saxon laws. Gothic or Scandinavian treatment was similar to the Saxon. It will thus be seen that the death penalty for rape is not a modern innovation, predicated upon race or class consciousness; nor is there to be found in any literature dealing with the law, or with custom, or with social relationships, any support for appellant’s proposition that the consequences of rape are negligible to the community and of but minimum importance to the outraged woman. Affirmed.

Ed. F. McFaddin, Justice. Upon an information, the sufficiency of which is not questioned, the appellant Lloyd “Doll” Trotter was tried, and convicted, of the crime of robbery. See § 3035, Pope’s Digest, and § 41-3601 Ark. Stats., (1947). His motion for new trial contains 13 assignments, and we group and discuss these in suitable topic headings. I. Sufficiency of the Evidence. Included herein are assignments 1, 2, 3, 11 and 12. Viewed in the light most favorable to the State, as we do when the defendant appeals from a judgment based on a jury verdict of guilty, the evidence reflects that Trotter, Garner and Brewer (hereinafter called culprits) suspected that Mitchell (hereinafter called victim) had some money or other property on his person. The culprits persuaded the victim to leave a dance and go with them out into the darkness, and then they attacked him and took his wrist watch, cigarette lighter,- glasses and billfold. Whether Trotter obtained any money from the billfold was not shown, but he did rifle it for anything of value. Mitchell’s glasses were recovered from a truck in which Trotter was hiding; and the watch and cigarette lighter were recovered from Brewer. While the culprits were attacking and robbing Mitchell the law enforcement officers came upon the scene, and Brewer and Trotter fled. Garner told the officers that he was trying to take Mitchell home as being intoxicated, but Mitchell informed them: “Like hell he’s trying to take me home. They robbed me and took my money and watch and glasses, and now they are trying to kill me. ’ ’ i The officers then took Mitchell and Garner in charge, and drove to Mitchell’s parked truck, where they found Trotter attempting to conceal himself. Mitchell’s glasses were found in the truck. In his defense, Trotter denied any act of robbery. He claimed that Mitchell had cursed and struck him, that a fight had ensued, and that he fled from the officers and went to Mitchell’s truck to await his arrival, and to make-him apologize for the cursing. The jury disbelieved the defense; and the evidence — only a brief portion of which we have summarized — is sufficient to show that the culprits successfully engaged in the enterprise of robbing the victim. See Shell v. State, 84 Ark. 344, 105 S. W. 575 and Jenkins v. State, 191 Ark. 507, 87 S. W. 2d 60. II. Corroboration. In attacking the sufficiency of the evidence, appellant’s learned counsel says: “There was no evidence against the defendant except the evidence of accomplices, and there certainly was no evidence aside from and independent of the evidence of the accomplices that would, in any manner, tend to connect the defendant with the crime of robbing Mitchell.” Garner and Brewer were also charged with the robbery of Mitchell. They confessed and accepted sentences. Trotter obtained a severance, and denied guilt. In the trial of Trotter (from which comes this appeal) the court instructed the jury that Brewer and Garner were accomplices; and the court also correctly announced to the jury the law as to the necessity and extent of corroborating evidence (see § 43-2116 Ark. Stats. 1947 and decisions there cited). The appellant did not object to such instruction, and offered no additional or supplementary instructions concerning either accomplices or corroboration. The witness Charles Adams testified that he heard the conversation between the three culprits and the victim, saw the culprits lure the victim away from the dance, and beat him; and also saw Trotter rifle Mitchell’s billfold. In the trial court appellant did not claim that Adams was an accomplice, did not ask the court to so declare, and did not request an instruction submitting that issue to the jury. Therefore, appellant waived the question of Adams being an accomplice. See Morris v. State, 197 Ark. 778, 126 S. W. 2d 93, and Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50. Adams has never been charged with the robbery, and his testimony, in sufficient essentials, corroborates that of the admitted accomplices. III. Alleged Hearsay Evidence. Assignments 4 to 10, inclusive, in the motion for new trial present this topic. At the time of Trotter’s trial Mitchell was.in the United States Navy, and the prosecution was permitted to prove two statements made by Mitchell. First Statement. As previously recited, Trotter fled on the approach of the officers. When Garner sought to allay suspicion by saying that he was taking Mitchell home as being intoxicated, Mitchell said: “Like hell he’s trying to take me home. They robbed me and took my money and watch and glasses, and now they are trying to kill me.” Trotter claims that this statement by Mitchell was made in Trotter’s absence, and was hearsay and inadmissible. We hold that the statement by Mitchell was a part of the res gestae, and admissible as such. The remark was immediately connected with the robbery, and possessed the spontane^ and other essentials of res gestae. In Underhill on Criminal Evidence, 4th Ed., § 611, p. 1189 this appears: “Anything the person robbed may have said during the assault which preceded or accompanied the robbery, if a part of the res gestae, is admissible.” See, also, Rogers v. State, 88 Ark. 451, 115 S. W. 156, 41 L. R. A., N. S. 857, and 22 C. J. 461. Second Statement. The police officers put Mitchell and Garner in the police car immediately after the foregoing statement, and Mitchell then said of Trotter: “He might be back down at my truck. ’ ’ The officers drove immediately to Mitchell’s truck, and found Trotter attempting to conceal himself in the truck. This second statement by Mitchell was hearsay, but is admissible. Tbe statement merely served to explain why the policemen went to Mitchell’s truck. In Reeves v. Jackson, 207 Ark. 1089, 184 S. W. 2d 256, and, again, in Amos v. State, 209 Ark. 55, 189 S. W. 2d 611, hearsay evidence was admitted as explanatory of the actions of the witness in events leading up to the main transaction. In the case at bar, the policeman was testifying as to where he arrested Trotter; and the hearsay evidence was merely incidental to the arrest. In Wylie v. State, 140 Ark. 24, 215 S. W. 593 the arresting officer was allowed to detail some of the hearsay evidence explaining why he went to a certain place to arrest the defendants. In holding such hearsay evidence to be admissible, Mr. Justice Hart said: “Oftentimes it is impracticable to go directly into the main issue, and it is necessary to know 'the circumstances leading up to it. These circumstances, while not in themselves relevant, are treated as the introduction to the main matter or by way of inducement to it. Hence the preliminary question above quoted was entirely proper. Jones, Commentaries on Evidence, Yol. 1, § 137a.” Under autlioritjr of the foregoing cases, we deny appellant’s assignments regarding the second statement. IY. Impeaching the Defendant’s Credibility. This is assignment 13 in the motion for new trial. Trotter testified as a witness in his own behalf; and on cross-examination the State — over defendant’s objections— was permitted to interrogate him and obtain answers as to previous convictions and also specific acts of misconduct. The defendant admitted that he had served two sentences in the Boys’ Industrial School, for burglary and grand larceny, and also admitted that he had made contradictory statements concerning his participation in one of these affairs. The trial court, in admitting the testimony, instructed the jury in this language: “It may be inquired into only as going to the credibility of this witness, and can be-considered by the jury for no other purpose.” With the limitation contained in the court’s ruling as quoted there was no error in allowing the State to thus cross-examine the defendant for the purpose of impeaching his credibility. In Benson v. State, 103 Ark. 87, 145 S. W. 883, Mr. Justice Frauenthal, speaking for this court, said: “When a defendant in a criminal case becomes a witness in his own behalf, he is subject to impeachment like any other witness. The testimony which he gives may be discredited in the same manner that this may be done in the case of any other witness. Upon his cross-examination, therefore, he may'be questioned relative to specific acts for the purpose of discrediting his testimony, and he may be asked as to whether or not he has suffered a former conviction for some crime affecting his credibility. When a defendant is a witness in his own behalf, the purpose of such testimony is only to impair his credibility and not to exclude him as a witness, and such conviction may be shown, therefore, by his own cross examination and need not be shown by the record of the judgment.” See, also, Zorub v. Mo. Pac. R. Co., 182 Ark. 232, 31 S. W. 2d 421 and Bockman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991, and cases there cited. Conclusion: We have examined all of the assignments contained in the motion for new trial, and find no error. Affirmed. See Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50, and cases collected in West’s Arkansas Digest, “Criminal Law,” § 1159(2).

Holt, J. This appeal is from a judgment against appellant, Barton, on a jury’s award of $200 in favor of appellee, Jordan, a licensed real estate broker, as commission on the sale of certain farm land. The material facts were to the following effect: Some time in April, 1948, prior to the 21st of that month, appellant entered into an oral contract with the appellee, a real estate broker, to sell a piece of farm land, which appellant owned, for $3,300, out of which appellee was to receive a commission of $200. Appellee found and introduced to appellant a purchaser, Mr. Carter, whom he showed the property, was satisfied with it, and later, on the 21st of April, purchased the farm direct from the owner, Barton. There was no definite time limit in the contract between appellant and appellee. On April 21st, after appellant on one or two occasions had made changes in the selling price of the farm, he (appellant) along with the purchaser, Mr. Carter, went to the home of appellee, Jordan, and there it was definitely decided and agreed that Carter was to pay appellant $3,300 for the farm and appellant agreed to pay appellee a commission of $200. Carter testified that some time prior to the 21st, after appellee had advised him that the Barton farm was for sale, and that he, appellee, was handling it, that “the nest day my wife and I went out to look the place over and Mr. and Mrs. Barton were both at home, and we talked to them about it. A price of $3,300 was agreed on. We were satisfied with the place. And with the price. ’ ’ Immediately following and after some negotiations with reference to a loan to pay part of the purchase money, Carter further testified that he and Jordan went to appellant’s farm: “Q. What occured there? A. Barton and I made an agreement to pay Jordan. I made an agreement with Barton to pay him $3,300, and he was to pay the $200 commission. Q. Mr. Barton was to pa?/ Jordan $200 commission? A. Yes, sir. Q. Was thal before or after yon went out there? A. That was while we were there. Q. You then agreed on a price of $3,300? A. Yes, sir. Q. And Mr. Barton agreed to pay Jordan $200 of that? A. Yes, sir.” Immediately following this meeting, on the same day (the 21st), appellant and Carter left appellant’s home with the understanding that they were to meet Jordan in Russellville for the purpose of financing and completing' the loan, but instead appellant and Carter went to Morrilton, and in the absence of appellee, and without his knowledge or consent, appellant voluntarily reduced the price of the land to $3,000 and sold it to Carter for that amount after Carter had arranged for the purchase money from his brother-in-law. The record reflects that the first information appellee had of the change in the selling price, after the agreement, supra, was given to him over the phone by the purchaser, Carter, after the deal had been consummated. Under these circumstances, appellee was the procuring cause of the sale, had earned, aiid rvas entitled to his commission, as the jury found under proper instructions from the court. We have many times announced the controlling rule in circumstances such as are presented here. In Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134, we said: “When appellant accepted the fruits of appellees’ services without giving them notice of revocation of their authority, he bound himself to pay the stipulated commission. * * * “Where the terms of sale are fixed by the vendor, in accordance with which the broker undertakes to produce a purchaser, yet if, upon the procurement of the broker, a purchaser comes, ■faith whom the vendor negotiates, and thereupon voluntarily reduces the price of the property, or the quantity, or otherwise changes the terms of sale, as proposed to the broker, so that a sale is consummated, or terms or conditions are offered which the proposed buyer is ready and willing to accept, in either such case the broker will be entitled to his commission at the rate specified in his agreement with the principal,” and in Hodges v. Bayley, 102 Ark. 200, 143 S. W. 92, we said: “A broker who has been employed to sell property is entitled to his commission where he has brought about between the principal and another negotiations which resulted in a sale which was consummated by the principal. Hunton v. Marshall, 76 Ark. 375, 88 S. W. 963. The broker is entitled to his commission in such event, although the principal sold upon terms different from those mentioned to the broker. Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134.” See, also, Hight v. Marshall, 124 Ark. 512, 187 S. W. 433. Based on the above facts and authorities, the‘court correctly instructed the jury as follows: “You are instructed that if you find from a preponderance of the testimony in the trial of this case, that plaintiff was a licensed realtor as required under the laws of Arkansas, and as such realtor entered into a contract with the defendant as his agent for the securing of a purchaser of defendant’s realty, for an agreed commission, and that under such agreement, defendant listed his property with plaintiff as his real estate agent, and that subsequently and while such contract was in force and effect, if it Avas so made, plaintiff brought to defendant a person or persons as prospective purchasers, who subsequently purchased the property from defendant through such introduction and efforts of the plaintiff, if found so made, then your verdict should be for the plaintiff for the commission though the sale may have in fact been completed by the owner himself. “No. 4. You are instructed that if you find from a preponderance of the testimony that plaintiff as the agent of defendant, brought a purchaser or purchasers of the realty of defendant, to him, and through an introduction or disclosure of the purchase brought about negotiations through which the sale of the property Avas effected, then if you so find, the commission alleged to be due would be payable by defendant and if you so find, your verdict should be for the plaintiff.” On appellant’s contention that appellee was acting for both the buyer and seller and therefore was not entitled to recover, but little need be said. We find no eAddenco in the record to sustain this contention. It appears tliat appellant made no issue on this contention at the trial and no instruction with reference thereto was asked by appellant. We held in Keller v. Whittington, 106 Ark. 525, 153 S. W. 808, that: (Headnote 3) “Where a question was not made an issue in the trial below, and no proof taken directed to it, it is too late to raise the question for the first time on appeal.” See, also, Plummer v. Reeves, 83 Ark. 10, 102 S. W. 376. Appellant’s fourth contention that the court erred in refusing to give his requested instruction No. 1 is untenable. The instruction provided: “You are instructed that if you find that the defendant entered into a contract listing his land with the plaintiff for sale of defendant’s land and that said contract, if there were a contract, was for any specified length of time and that plaintiff furnished a buyer able and willing to buy before defendant revoked the contract, your verdict should be for the plaintiff; but you are further instructed that if defendant and plaintiff entered into a contract for plaintiff to sell defendant’s land and said contract was not for any specified length of time, defendant had the right before a bargain was made while negotiations were unsuccessful before plaintiff had earned a commission to revoke the contract and the plaintiff cannot thereafter claim a commission on a sale made by defendant even though the sale was made to a customer with whom the plaintiff had negotiated.” The court correctly refused to give this instruction for the reason that the evidence shows that appellant at no time, prior to the date that he alone completed ilie sale to the purchaser, Carter, for $3,000 cash, revoked, or attempted to revoke, his contract with appellee. Appellee was entitled, under his contract with appellant, to a reasonable time within which to consummate the sale of the property to his prospect, Carter. Here, he was prevented from consummating the sale by appellant’s own acts. We said in The Addressograph Company v. The Office Appliance Company, 106 Ark, 536, 153 S. W. 804: “If after a broker, employed to sell property, had in good faith expended money and labor in advertising for and finding a purchaser, and was in the midst of negotiations which were evidently and plainly approaching success, the seller should revoke the authority with the purpose of availing himself of the broker’s efforts and avoiding the payment of his commissions, it could not be claimed that the agent had no remedy. In this case it might well be said that there was an implied contract on the part of the principal to allow the agent a reasonable time for performance, that full performance was wrongfully prevented by the principal’s own acts, and that the agent had earned his commission.” We conclude, therefore, that on the whole case, the evidence was ample to support the jury’s verdict, that no error appears, and accordingly, the judgment is affirmed.

Holt, J. A jury found appellant guilty of grand larceny, and assessed Ms punishment at three years in the State Penitentiary. From the judgment is this appeal. Abraham Hill, a youth 17 years of age, who was jointly charged and tried with appellant was acquitted. For reversal, appellant, in effect, contends (1) that the evidence was not sufficient to support the verdict of guilty, and (2) that the court erred in refusing appellant’s motion for a directed verdict of not guilty, at the close of the State’s evidence. The instructions were not questioned. (1) Briefly stated, the evidencé on the part of the State tended to show that on November 29, 1948, J. P. Hall, a farmer, purchased a watch from a jeweler in Helena for $178.50. The jeweler testified that it was a 17-Jewel Hamilton Watch, “with a solid gold case and ten diamonds on it. ’ ’ Mr. Hall kept the watch in the glove compartment of his car at various times. On the night before Christmas, 1948, he put the watch in the compartment and locked it, and about noon the next day, took the watch out, looked at it, and replaced it in the compartment. That afternoon, about 2:30, Mr. Hall picked up appellant who remained in the car on the front seat with Mr. Hall for about one-half hour and then appellant left the car. Lollar, who was 19 years of age, had a criminal record, having been charged with delinquency in Louisiana and having served part of a three year sentence for' car theft in the Booneville Reformatory in Missouri. Mr. Hall was drinking on Christmas day and at various times had other people in his car. Late in the afternoon of that day, Hall missed the watch, suspected appellant, and began a search for him. December 28th, the Chief of Police at Marianna received a telephone call from the Hobbs’ Hardware Store in that city informing him that two boys, later identified as appellant and his associate, Hill, were in the store trying to pawn a watch for $50. When the Police Chief arrived at the hardware store, the two boys had gone to Harrington’s Drug Store, where they again tried to pawn the watch. It was here that the boys were arrested and turned over to the .authorities, — the watch being in appellant’s possession. Appellant’s explanation of his possession of the watch was that he had won it in a “crap game” from an unidentified Mexican. Hill, his associate, testified that they went to Marianna to dispose of the watch because they were not known in that city. He further testified that appellant, Lollar, admitted to him that he had stolen the watch from Mr. Hall’s car. Hill was asked: “Didn’t he (meaning appellant) tell you the details about getting it out of that car when he was sitting in there taking a drink? A. Yes, sir. Q. He told you he stole it, didn’t he? A. Yes, sir. Q. You know now that you are getting yourself in the penitentiary because you told that? A. 1 figure it, yes, sir.” The above testimony was ample to warrant the jury in finding appellant guilty. It is undisputed that appellant and Hill had the watch in their possession when arrested. Appellant’s attempt to explain possession of the watch by claiming that he had procured it from an unidentified Mexican presented a jury question. “Possession of property recently stolen justifies the inference that the possession is a guilty possession, and may be of controlling weight, unless explained by circumstances or accounted for in some way consistent with • innocence. We have repeatedly held that the recent possession of stolen property by the defendant unexplained, when taken in connection with other circumstances . . . is sufficient to warrant a verdict of guilty. Indeed, the recent possession of stolen property by the accused, unexplained, warrants the jury in returning a verdict of guilty. McDonald v. State, 165 Ark. 411, 264 S. W. 961, and cases cited.” Dennis v. State, 169 Ark. 505, 275 S.W. 739. (2) The trial court did not err in refusing appellant’s request for a directed verdict at the close of the State’s testimony. We said in the recent case of McDougal v. State, 202 Ark. 936, 154 S.W. 2d 810: “If the evidence was sufficient to convict appellant then the trial court committed no error in refusing to direct a verdict. In the recent case of Graham and Seaman v. State, 197 Ark. 50, 121 S.W. 2d 892, we said: ‘It is true that at the end of the testimony for the state appellants asked the court for a directed verdict of not guilty. If, however, the evidence was sufficient to sustain the verdict of the jury, and we hold it was, of course, there was no error in refusing to give this instruction. ’ ’ ’ Here, as above noted, the evidence on the part of the State was sufficient to support the verdict. Accordingly, the judgment is affirmed.

George Rose Smith, J. This suit was begum by the appellants, assignees of a contract for the purchase of land, to obtain rescission and damages upon the ground that their participation in the contract was induced by fraud. By cross complaint the appellees asserted that appellants were delinquent in their payments and asked foreclosure of their equitable lien. The chancellor found-no merit in the allegations of fraud and accordingly ordered foreclosure. This appeal followed. Appellant John J. Brooks is the third recently discharged war veteran who has attempted to make a success at farming this land. In 1945 appellees John W. and Mildred Smith listed the property for sale with Burton Real Estate Agency. The listing described 225 acres and recited that there was about $2,000 worth of timber on the land. The property as listed comprised a farm complete with various farm implements, cattle, etc. Burton negotiated a contract with Vernon and Paula Luke, by which the Lukes agreed to purchase the farm for $11,000, of which $2,500 was paid in cash. The conIract describes 225 acres but makes no mention of the timber, although it is not disputed that while showing the property Burton- informed the prospective purchasers that it included $2,000 worth of timber. After living on the land for a few months the Lukes employed Burton to sell their equity in the farm. Bur ton succeeded in making a sale to W. IE. Frizzell, who paid the Lukes for their interest and took an assignment of the contract with appellees. - Frizzell in turn became dissatisfied with farm life after a few months and employed Burton to find another purchaser. Burton showed the property to appellants and eventually closed an agreement by which they paid Frizzell $4,500 for his equity and assumed the purchaser’s obligations under the original contract. They now seek cancellation and recovery of the payments made. There are two material» allegations of fraud. First, it is established by undisputed proof that appellees have title to only about 212 of the 225 acres, more or less, described in the contract. The discrepancy is attributable to the inclusion in the contract of a twelve-acre tract previously sold by the appellees. We do not think that this shortage in acreage, arising by mistake rather than intentional fraud, is sufficient to require rescission, but appellants are clearly entitled to an abatement of the purchase price to compensate for this deficiency. Fitzhugh v. Davis, 46 Ark. 337. Appellants have not asked for this specific relief, but the appellees obtained reformation on the basis of mistake and will be compelled to-do equity upon their part. It is shown that the land is worth about $40 an acre; so the appellants must be credited with $480 upon their obligation to offset the deficiency in acreage. To this extent we modify the chancellor’s decree. Second, appellants insist that Burton assured them that the property included merchantable timber worth from $2,500 to $3,000, when in fact the timber was worth not more than $1,497 according to the most liberal estimate given by the appellees’ own witnesses. Even so, this does not entitle appellants to a rescission. Whatever representation may have been made as to the value of this timber was made by Burton, who was then acting for and being paid by Frizzell. The appellees had knowledge of the assignment, as the original contract required "their approval of any assignment of the purchaser’s interest, and in this instance they exacted a payment of $1,000 on the principal debt before giving their consent to the ti-ansfer. But Burton was not acting for the appellees in the Frizzell-Brooks transaction ; so Burton’s asserted misrepresentations give appellants no cause of action against appellees. Burton is also an appellee, and appellants urge that he is liable for the false representations concerning the acreage and timber. As to the acreage, appellants will be fully compensated by the abatement of purchase price already allowed. As to the timber, appellants testified that Burton fixed the value at from $2,500 to $3,000, but the testimony for Burton J.s that he mentioned only $2,000 worth of timber. Fraud must be clearly provecí, and the chancellor evidently accepted Burton’s version of the matter. Since the timber is worth less than $1,500, the real question is that of Burton’s liability for representing it to have been worth $2,000. We need not determine whether this statement of value was made in circumstances justifying reliance thereon by the appellants, for in any event Burton is not liable. Of course an agent may be held responsible for making a statement which he-has reason to know to be fraudulent. Mayhue v. Matthews, 174 Ark. 24, 294 S.W. 364. But here such knowledge has not been brought home to Burton. Appellees stated in their original listing that the timber was worth about $2,000, and it is inferable that the Lukes and Frizzell authorized the same representation. Burton did not even know exactly where the land lines were and has not been shown to have had any independent knowledge of the timber’s value. Hence he was only repeating in good faith a statement authorized by his principal, Frizzell, and cannot be held liable for its falsity. Mechem on Agency (2nd Ed.), § 1458; Rest., Agency, § 348. Appellants question the remedy of foreclosure, but it is well settled by our decisions that the relation of vendor and purchaser is in substance that of mortgagor and mortgagee, entitling the seller to foreclose his equitable lien. Manwaring v. Farmers’ Bank of Commerce, 139 Ark. 218, 213 S.W. 407. We accordingly remand the cause so that the foreclosure sale may be held. By peti-" tion in this court appellants state that since the entry of the decree appellees have sold part of the timber and should be punished for contempt of court. This is a matter which may more appropriately be considered by the chancellor than by us. The decree restored appellees to possession of the property, and the chancellor should treat them as mortgagees in possession. He may require an accounting for the fair value of any timber sold, regardless of the price actually received, or., if the rights of innocent purchasers have not intervened, may in his discretion cancel the sale. Appellants also allege an error in the calculation of interest, which the appellees admit. We have not been furnished with the correct figures, however, and so leave this adjustment to the chancellor. Modified and remanded.

Griffin Smith, Chief Justice. The State Game and Fish Commission sought by Circuit Court action to con demn lands in Faulkner County for a game and fish reserve, under authority of Amendment No. 35 to the Constitution. By construction of a dam across Palarm Creek a lake covering between six and seven thousand acres would be created at a maximum elevation of 261 feet above sea level. The creek, sluggish in dry weather, accounts for a swampy area not reasonably adaptable to agriculture, but yielding commercial timber, such as oak, pine, etc. In addition to the property to be inundated, a margin of twenty feet bordering the shoreline would be included, all in designated sections of Townships Four and Five North, Range Thirteen West. The complaint listed sixty tracts and 132 defendants, of whom but three have contested court action — W. R. Wrape Stave Company, Dierks Lumber and Coal Company, and Magnolia Pipe Line Company. Wrape’s holdings include 160 acres from which all of the timber has been taken, and 700 acres of partly cut land. The property is not for sale and no definite value was stated, although $10 per acre might be a fair price for the cutover acreage. Dierks owns 680 acres purchased in 1946 and 1947 for $21,800. It was thought to be worth $25,000 for timber and growing purposes. Magnolia Pipe Line Company has projected a twenty-inch line from Texas to Illinois, beginning at Corsicana, traversing Arkansas, and terminating near Patoka, in Marion County, Ill. In a joint action by Wrape, Dierks, and Magnolia, the condemnation suit was removed to Federal Court, but was remanded upon determination by Judge Lemley that in respect of the relief sought, the Commission was the State, and the State, acting in its sovereign capacity, is not a “person” within the Act of Congress. Jud. Code, § 28, 28 U. S. C. A., § 71. Arkansas State Game and Fish Commission v. W. R. Wrape Stave Co., et als, 76 Fed. Sup. 323. On remand the defendants alleged equitable defenses not cognizable at law, and the causes were transferred to Chancery on petition for injunctions and on cross-complaints. Allegations were (a) that condemnation was not authorized for the purposes contemplated, (b) the Com mission was not the real party in interest, (c) funds were not available to finance the undertaking or to pay damages, (d) Conway sewage would contaminate the lake and destroy fish, (e) no effort was made in any case to acquire property by purchase or gift, (f) maps were not filed, (g) the Commission’s resolutions authorizing the project were insufficient, and (h) “Where land has been devoted to a public use, [as in case of rights acquired by the Pipe Line Company] it may not be subjected to subsequent condemnation for another public use which would impair its first use, in the absence of constitutional or statutory authority, either expressed or necessarily implied.” Five express findings were made by the Court, upon which the decree dismissing the cross-complaints for want of equity was predicated: (1) On the issue of authorized purpose — that is, whether Amendment No. 35 intended that Commission funds should be spent for a preserve such as was indicated by the Palarm dam, and whether property involved could be taken by condemnation — the Chancellor said the only testimony was that of T. A. McAmis, Executive Secretary of the Commission, who in all respect verified the contention that the end sought was “. . . for the conservation of birds, fish, game, and [other] wild life, and to create a recreational area for use of the citizens of the State at large.” (2) That at a pre-trial conference May 29 it was determined that the Commission was the real party. (3) The cross-complaint could not, as a defense to the Commission’s proposal to condemn, question the source from which payments would come. (4) The Court would assume good faith upon the part of Conway municipal authorities in pledging an appropriate diversion of sewage, to the end that contamination of the lake would not occur. (5) Section 4994 of Pope’s Digest relating to negotiations in an effort to agree upon easements, applies to railroad, telegraph, and telephone companies, “ora pipe line company. ’ ’ The Commission, said Judge Ward, had been importuned by many citizens of Faulkner and Pulaski Counties, who urged that the preserve be established, and “interested representatives” of local groups had acted for the Commission, relieving it of the imputed duty of negotiating, since the contracts so made took the place of direct action by the Commission. The Court was not convinced that Magnolia was a common carrier devoted to public service of a character preventing the State from condemning, for concurrent use, land over which the pipe line passed, hence a subsequent grant in the circumstances shown would not destroy the primary right, or impair appellant’s property in a way not compensable in damages. First — Amendment No. 35. — The underlying purpose seems to have been (<§ 1) to vest in the Commission “The control, management, restoration, conservation, and regulation of birds, fish, game, and wild life resources of the State.” Funds arising from all sources, including the sale of property, (§8) shall be expended by the Commission “. . . for the control, management, restoration, conservation, and regulation of bird, fish, and wild life, . . . including the purchases or other acquisitions of property for said purposes and for the administration of the laws pertaining thereto, and for no other purpose. [The Commission shall have the power] to acquire by purchase, gifts, eminent domain, or otherwise, all property necessary, useful or convenient . . . in the exercise of any of its duties, and in the event the right of eminent domain is exercised, it shall be . . . in the same manner as now or hereafter provided for the exercise of eminent domain by the State Highway Commission. ’ ’ The Highway Commission, (Pope’s Digest, § 6593) if it condemns, must proceed in the manner provided for railroad, telegraph, and telephone companies. Act 71 of 1929. The Game and Fish Commission is given a very broad discretion in determining how wild life shall be conserved. Not only may it acquire, by condemnation or otherwise, the property actually needed, but it may also procure any that may be “useful or convenient . . . in the exercise of any of its duties”; and, while in matters of mere convenience the power would not be unlimited, yet the intalicized words serve to emphasize a plan by those who framed the Amendment — a bilateral purpose to conserve wild life, and to place that duty with the Commission. Although appropriations must come from the General Assembly, money received from sources mentioned in the Amendment is not.available— even with legislative approval — for any uses other than those expressed or necessarily implied; and the Commission determines what property is needed. In the case at bar it is insisted that sportsmen from Conway and Little Rock, for reasons of personal convenience, have promoted the project, and that in yielding to importunities by these groups the Commission has not acted for the best interests of all of the people. This conclusion, appellants intimate, finds support in the fact that Federal agencies, when approached by representatives of the Conway Chamber of Commerce, refused to participate in this or similar ventures, thus inferentially saying the refuge was not a public necessity within the meaning of Amendment 35, or that plans for construction of the dam, when considered in connection with flowage costs, rendered the venture impracticable. But the Commission’s duties, and its right of determination, are not to be measured by mere doubt-creating suggestions; and an unnamed agency’s failure to assist falls short of being proof that the Commission’s purposes are ill-conceived. By resolution the Commission first set aside $65,000 — a sum it subsequently concluded was insufficient; so in June 1948 the allocation was increased by $10,000. This, said Mr. McAmis in testifying, was intended as the State’s full expenditure for acquisition of the property and construction of the dam. A voucher for $40,000 was drawn against the $75,000 allotment and paid into the Court registry to compensate damages for property that might he taken. This left $35,000 of the “ear-marked” fund for nse in building the dam — an undertaking formerly estimated at $65,000. However, said McAmis, “The Commission can [set aside for this project] additional money at any time it is needed.” It was shown that a new appropriation ($300,000 for each year of the biennium ending June 30, 1951) had been made by the Fifty-Seventh General Assembly to purchase lands “in areas suitable for public hunting, public fishing, ’ ’ and kindred activities. A stressed point in appellants’ argument is that failure of the Commission to strictly comply with Act 271 of 1941 requires reversal of the judgments. The Act provides that condemnation shall be in the name of the State for use of the Game and Fish Commission, “. . . and before any such suit can be brought it shall be necessary for the Commission to unanimously pass a resolution to that effect, setting forth the necessity and purpose for which the land is to be condemned, together with the legal description of the lands sought to be condemned. A copy of the resolution shall be transmitted to the Prosecuting Attorney of the district in which the land is situated, and it shall be the duty of the Prosecuting Attorney to institute proper proceedings for the condemnation of such lands.” Another requirement of the Act (§ 3) is that “Before any such action may be maintained it must appear that the General Assembly has made adequate appropriation which is available at the time the suit is filed with which to pay damages assessed by the jury for the taking of such land. ’ ’ Appellee contends — and correctly, we think — that Amendment 35 is complete within itself, and that prior legislative Acts, whether directive or restrictive in nature, have been superseded. It seems to have been the purpose of those who wrote the Amendment to cover the whole subject, and to either provide, or leave to the Commission, methods for reaching these ends. See Adams v. DeWitt Special School District, 214 Ark. 771, 218 S. W. 2d 359. In support of their belief that cross-complaints were erroneously disposed of, appellants point to what they term legislative attempts, by Act 207 of 1947, to provide funds for the Commission’s use in purchasing lands. The language, they say, is too general, hence — for want of specific allocation — the mandate of Art. 5, § 29, of the Constitution, has not been complied with. Director of the Bureau of Legislative Research v. MacKrell, 212 Ark. 40, 204 S. W. 2d 893. The Act also provides that before money can be spent for authorized purposes, the particular project . . shall be approved by the United States Fish and Wildlife Service and/or United States Forestry Service and/or the United States Soil Conservation Service, or similar Federal agency having Federal jurisdiction of Federal Aid Programs in Arkansas. ’ ’ We do not determine (a) whether Act 207 was invalid for want of specific words of appropriation, or (b) whether the requirement for Federal agency approval was likewise indefinite. Approval was given by a Federal authority that did not have matching money. Had the Act been open to the flaws now complained of, issuance of a voucher within the fiscal period might have been halted by one proceeding appropriately for that purpose. Either the Commission’s disbursing agent, the Auditor of State, or the State Treasurer could have been enjoined. But appellants say they were not notified that the Commission intended to issue the voucher, hence they did not have an opportunity to protest. Answer is that notice was not required. When the money was paid into Court, termination of the fiscal year, and expiration of the period for which the appropriation was made, lost significance. The voucher was drawn and the warrant issued within two years from effective date of the appropriation, and in this respect the Constitutional limitation as to time was complied with. It must be remembered that 129 other defendants are, or may be, concerned with the attempt of these three appellants to require a refund of the $40,000 item. As to them, attack on the appropriation bill is collateral to the principal controversy, and it has no relation to the Commission’s power to seek condemnation. Chief Justice Hart, speaking for an undivided Court in Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561, said that a County Court order changing .a public road on petition of the State Highway Commission was not void for want of notice to landowners. He cited Act 5 of the Special Session of 1923. The decision sustained an order “laying out” the road, and allowing a year within which claims could be filed and damages assessed. The order was not faulty on Constitutional grounds relating to property taken for public use, and the requirement for compensation. Barton v. Edwards, 120 Ark. 239, 179 S. W. 354. In the Barton case it was expressly held that payment for the taking of private.property for construction of a public road need not precede the taking. There is no presumption that the State or its subdivisions are insolvent. In that case depreciated scrip was held to be good as payment. This rule was modified in effect when a provision of Act 65 of 1929 was held unconstitutional. The Act authorized the Highway Commission to condemn lands “without the necessity of making a deposit of money before entering into possession of the property condemned.” Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S. W. 2d 968. In the case just cited it was said: “There is authority in the law whereby the Court, in which condemnation is prayed, may require a deposit in Court of a sum of money sufficient to pay any and all damages which may reasonably be assessed; and the deposit must be in the registry of the Court where the damages will be assessed. . . . This deposit is in effect the payment, and in advance, which the Constitution requires as a condition precedent upon which the property must be taken. Such an order of the Court and a deposit pursuant thereto [place] the fund in the hands of and subject to the control of the Court. The showing that there is or was money in the State Treasury in a sum sufficient to pay the damages does not suffice. ... In so far as [Act 65] permits the State Highway Commission to enter into the possession of private property, without first compen sating the owner for the damages sustained by actual payment of the amount of such damages, or by deposit of. money covering them, in the Court where the right is sought to he exercised, [the Act] is violative of § 22 of Art. 2 of the Constitution.” It was said in Arkansas State Highway Commission v. Hammock, 201 Ark. 927, 148 S. W. 2d 324, that the action to condemn was a proceeding in rem, but that entry upon the property — the actual act of taking— would he restrained at the instance of the owner until payment had been made. Rules pertaining to condemnation were reviewed in Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W. 2d 58. The City, without paying the award or making a court deposit, gave notice of abandoning the rights it had acquired through condemnation. That right was sustained. The opinion cites South Carolina State Highway Department v. Bobotes, 180 S. C. 183, 185 S. E. 165, 121 A. L. R. 1, where the Court said that in the absence of statutory provision to the contrary, the Highway Department could abandon a condemnation proceeding “with consequent nonliability for the amount awarded, even after judgment has been entered on a jury’s assessment of the value of the property and an appeal therefrom has been noted. ’ ’ In the case at bar it is shown that citizens of Conway and Little Rock made substantial contributions to a fund for use of the promotion committee, and that the committee, cooperating with the Game and Fish Commission, would furnish money for the undertaking. It is not urged that this intangible fund has any standing as a cash tender; nor has it. Second — Claim of Priority by Pipe Line Company.— There was testimony on behalf of Magnolia that its line would be covered to a depth of from two to three feet “over most of it,” and in places the maximum would reach six or seven feet. The Company’s engineers felt that if the waters should be impounded the entire line ought to be relocated. This would cost $150,000 or $200,000. 'But, said tbe witnesses, there were methods by wbicli tbe pipe could be wrapped, or encased, affording sufficient protection to prolong usability indefinitely. When in capacity operation the line carries 100,000 barrels per 24-hour day, for which an average charge of 30e is made. Loss incident to shutting down for a day would be $30,000. In addition, a heavy break would pollute the water and probably destroy the fish. We do not reach these objections. They are elements of damage for the trial Court’s consideration when an order of condemnation is made. The present appeal is from the Court’s refusal to enjoin the Commission from constructing the dam and procuring a condemnation order. The testimony is considered in determining whether the Chancellor erred in holding that the project would not be so costly or impracticable as to impute to the Commission capricious conduct. The Chancellor was not, under the evidence, required to find that Magnolia’s use of its property would be so adversely affected by the lake as to deprive the Company of essential easement rights. Under Amendment 35 the Commission, acting for the State, has a paramount duty to the public. If Magnolia’s commerce can be reasonably maintained under the limited overflow suggested,- or if there can be relocation at a cost not incompatible with the Commission’s objectives, the inconvenience and cost to Magnolia — for which there must be compensation —would not justify injunctive interference. Affirmed. Mr. Justice Robins did not participate in the consideration or determination of this case. By § 5081 of Pope’s Digest, pipe line companies are given the right of eminent domain. Procedure for exercising the right is the same as that prescribed for railroad, telegraph, and telephone companies. Ark. Stats. (1947) §§ 73-1901-2. The resolutions passed by the Commission were not formal. Action of that body is reflected by the approved minutes. The legislative authority under which Fayetteville sought to condemn was Act 135 of 1929, where the procedure is that applicable to railroads. An example of witness uncertainty is shown by the testimony of J. E. McGeath, who as assistant general superintendent for Magnolia expressed opinions as to the Company’s probable damage. After saying that life of the pipe would be affected by precipitation, water sediment, mineral content of the lake, condition of adjacent soils, etc., he was asked what effect water would have on the line if it should be appropriately encased. The reply was that there would be longer Ufe, but it would be shorter than non-submerged pipe. Question: “How much shorter?” A. “That is a difficult question to answer. For 100 feet it might be one thing, and for a mile something else. It depends on the character of your soil and whatever corrosive elements you have.” There was like uncertainty by line experts. Witnesses testified that it was practical to cross rivers and lakes with pipe lines, and that it was frequently done.

George Rose Smith, J. This is the third attack upon a sale by which certain land in the town of Minturn was sold to the appellee district in 1939, in proceedings for the collection of delinquent drainage taxes. The sale was first questioned by appellant’s sister, Fairbelle Mitchell, who then asserted title to the property. After Mrs. Mitchell’s death that suit was continued by her daughter, as her sole heir. The case was before this court twice, the decisions being in favor of the district and its grantees. Shinault v. Wells, 208 Ark. 198, 186 S. W. 2d 26; Wells v. Golden, 209 Ark. 378, 191 S. W. 2d 251. Mrs. Mitchell’s widower and daughter then brought a suit in federal court, but again the attack failed. Mitchell v. Village Creek Dr. Dist., 158 Fed 2d 475 (C.C.A. 8). Appellant now assails the district’s proceedings upon the basis of objections which were or could have been raised in the earlier cases! To meet the defense of res judicata he relies upon a lost unrecorded deed by which Mrs. Mitchell is said to have conveyed to him a life estate, in 1924. The chancellor doubted if his testimony was sufficiently clear and convincing to establish the lost instrument, but we prefer to rest our decision oh the broader ground of estoppel. Appellant actively supported his sister when she claimed the land in the first suit. He acted as her agent in making a tender of taxes. He testified in her behalf, saying that he had been in possession of the property for nineteen years as Mrs. Mitchell’s tenant. Even if his account of the lost deed be accepted, it merely proves that appellant concealed his interest in the property by swearing that he was merely a tenant and thus speculated upon the hope that his grantor would prevail in her action. Under familiar principles of equitable estoppel he cannot be permitted to say that he is not bound by the earlier judgment. Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993; Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205. Affirmed.

George Rose Smith, J. This controversy is between rival purchasers of 150 acres of timberland, formerly owned by the nineteen heirs of T. A. Neely. The chancellor ruled in appellee Hornady’s favor in this action to quiet his title to the land. The appellants contend that the chancellor erred in refusing to sustain their claim to an undivided nineteen forty-seconds interest in the property. The facts are best stated in chronological order. In early July, 1946, both Hornady and the two appellants were negotiating with the Neely heirs for the purchase of this timberland. On July 10 Hornady made an oral contract with four of the heirs, by which he agreed to buy the property for $3,500. This agreement was subject to these conditions: (a) That the other adult heirs agree to the sale; (&) that Hornady institute probate proceedings for the sale of the interest of the nine minor heirs; (c) that Hornady be the successful bidder at the probate sale; and (cl) that after the conveyance Hornady reconvey the land without the timber to Henry Neely, one of the heirs, for $1,000. Thus in effect the appellee agreed to buy the timber for $2,500, and Henry Neely agreed to buy the land for $1,000. Hornady prepared a warranty deed to be signed by all the adult heirs. Four of them signed and acknowledged it on July 10. The deed was then left in the custody of a notary public, with the understanding that the other adult heirs would come in and sign it if they agreed to the sale. The notary was not authorized to deliver the deed to the grantee; on the contrary, after every one had signed he was to deliver it to one of the grantors, who was to retain it until the sale was completed and the consideration paid. On July 20 all the other grantors except Henry Neely called at the notary’s office and signed the deed. Thus the matter stood until early in September, when Carl Neely became dissatisfied with what he considered to be the slow progress of the probate proceedings. He borrowed the deed from the notary and in company with appellant Lindsey submitted it to his attorney, T. S. Lovett, Jr., for an opinion as to whether he was bound by his oral agreement with Hornady. Mr. Lovett advised Neely and Lindsey that the oral contract was unenforceable and that Neely was free to sell to the appellants if he wished. Acting on that advice Carl Neely conveyed his interest to the appellants, who promptly recorded the deed. Between then and September 21 several other Neely heirs also became dissatisfied and sold their interest to appellants. By these deeds the appellants acquired the nineteen forty-seconds interest they now assert. Hornady was the highest bidder at the probate sale and received the guardian’s deed on September 24. In October Henry Neely signed the original deed and it was delivered to Hornady, who then conveyed the land to Henry Neely with a reservation of the timber. Checks for the purchase price were sent to the various heirs, but those who had already sold to the appellants refused to accept the tender. Hornady then brought this action against the appellants to quiet his title and to cancel the deeds to them. By cross-complaint the appellants sought partition. We think Carl Neely’s attorney was right in his view of the law. Although the heirs may have been morally bound by their agreement with Hornady, the statute of frauds rendered the contract unenforceable. The deed itself was the only writing signed by the vendors. To satisfy the requirements of the statute a written memorandum must state the consideration and all other essential terms of the agreement. St. L., I. M. & S. Ry. Co. v. Beidler, 45 Ark. 17. Here the deed recited a consideration of one dollar and made no mention whatever of those terms of the contract having to do with the probate proceedings and the reconveyance to Henry Neely. It was therefore not sufficient to take the agreement out of the statute. To avoid the effect of the statute of frauds the appellee contends that there was a valid deposit in escrow or in the alternative that delivery and passage of title took place when the deed was left with the notary. As to the first contention, a deposit in escrow is effective only if the deed passes irrevocably beyond the grantor’s con trol. Masters v. Clark, 89 Ark. 191, 116 S. W. 186. Here the notary acted as the grantors’ agent in retaining the deed and was instructed to return it to one of the grantors. These facts also answer the alternative contention; for delivery of a deed to the grantor’s agent, to be held by him until the purchase money is paid, cannot be treated as a delivery to the grantee. American Central Fire Ins. Co. v. Arndt, 129 Ark. 309, 195 S. W. 1075. We conclude that the appellants’ assertion of title to an undivided interest in this land must be sustained. The decree is accordingly reversed and the cause remanded.

George Rose Smith, J. This suit was brought by the appellee upon an insurance policy covering loss or damage resulting from the theft of his truck. The main question at the trial was whether the vehicle was stolen or merely taken without appellee’s permission. The jury found that a theft had occurred. Appellee lived on a farm about eight miles north of Green Forest and had an employee, Cecil Stewart, who occupied a tenant house. Stewart was authorized to use the truck for farm purposes but was not allowed to use it in his own affairs. On two occasions during the ten days preceding August 2, 1947, the appellee had refused to permit Stewart to take the vehicle on a trip to the wheat harvest. On the night of August 2 Stewart took the truck without permission and drove north into Missouri. He followed a route roughly clockwise and was back in this State driving west toward Green Forest when he was involved in the accident that caused the damage giving rise to this suit. Stewart arranged for the truck to be towed to a garage in Harrison and, leaving it there, returned to his home the next day. There he admitted having taken the truck, attributed it to the fact that he had been drunk, and offered to bear the cost of repairs if appellee wouldn’t have him prosecuted. No criminal charges were brought, though in the course of an investigation by the State police appellee reported what he knew of the incident. This evidence is sufficient to support the jury’s verdict. They may well have concluded that Stewart took the vehicle with the intention of going to the wheat harvest and that his aimless circle through Missouri was occasioned by his intoxication. When the accident occurred he was traveling west, the direction of the wheat fields as well as of Green Forest. His conduct in having the truck taken to a garage and in returning to his home does not eliminate tlie possibility that tile taking was felonious. Appellant complains of two instructions explaining the elements of larceny, but the only objection made is that they were abstract. Even so, there was no prejudice, for we do not see how either instruction could have misled or confused the members of the jury. We have often held that the giving of abstract instructions is not reversible error in these circumstances. Affirmed.

Holt, J. This is an action of Replevin. March 28, 1947, Crystal Houston sold a Ford automobile to Bill Johnson for a consideration of $350, $150 of which was paid in cash, and the balance, including certain finance and carrying charges, amounting to- $288.84, was evidenced by a note and a Conditional Sales Agreement in which it was provided: ‘ ‘ That the title of the car shall remain in Seller or Assigns, until all amounts due hereunder or rearrangements thereof are fully paid in cash. Said note or this contract may be assigned or the payment thereof renewed or extended without passing title of said car to Purchaser.” This balance was to be paid in monthly installments of $24.07. On the same day, March 28th, Houston duly assigned the note and Sales Agreement to the Commercial Credit Corporation.- Johnson made some of the installment payments, reducing the amount to $195.70, and sold the car. The Commercial Credit Corporation continued to own and hold the note and Sales Agreement until November 25, 1947, when appellees, Ellington and Roe, acquired all rights and interest in these instruments by paying to Mr. Hampton, the authorized agent of the Credit Corporation, $195.70, balance which Bill Johnson owed the Commercial Credit Corporation. Appellees, used car dealers in Jonesboro, bought the car in question from a party in Kennett, Missouri, without any knowledge of the Credit Corporation’s interest and sold it to Mr. Hyde. Appellant, Sessums, later bought the car and upon learning of the Credit Corporation’s lien and interest came back on appellees, who in turn paid the balance due the Credit Company, as above indicated. At the time appellees paid Hampton, the authorized and acting agent of the Credit Company, Hampton did not have the note and Sales Agreement, but promised and assured appellees that these papers would be deliv ered to them shortly, and gave the Credit Corporation’s receipt to them. The record reflects that the original note and Sales Agreement had been lost, or misplaced, by Johnson. However, while in his possession, authentic photostatic copies were made and later were delivered to appellees. Appellees sued Sessums, alleging that the note and Sales Agreement, supra, had been assigned to them by the Credit Corporation, that they were the owners thereof, had title to the car in question and entitled to its possession, that Sessums is a non-resident and about to leave the State, is in possession of the automobile, and refuses to deliver same to appellees. They prayed for recovery of the property and damages. Appellant, MeCourtney, intervened, alleging that on July 21, 1947, Bill Johnson executed a Chattel Mortgage on the car in question to secure an indebtedness of $400 which Johnson owed him for professional services. Upon trial, at the close of all the testimony, appellants asked for an instructed verdict against- appellees, and appellees in turn requested an instructed verdict against appellants. The court found the issues in favor of appellees. The judgment recited: “And the Court being well and sufficiently advised in the premises, finds for the plaintiffs (appellees) for the possession of one 1937 Tudor Ford Sedan, Serial No. 54-232003, Motor No. 54-232003, as against the Defendant, Ernest Sessums, and the intervener, Bon MeCourtney; that the conditional sales contract owned by the plaintiffs is a superior lien to that of the intervener and that plaintiffs are due the sum of $175.90 as a balance upon said sales contract, together with interest at the rate of 10% from 28th of March, 1948, to date. “The Court further finds that the intervener, Bon MeCourtney, has possession of the above named automobile by reason of a lien upon said automobile, junior to that of Ellington & Boe; that he should be permitted to pay the amount due these plaintiffs and retain the above named car; that the defendant, Ernest Sessums, has received full settlement for any rights which he may have in and to the above described automobile; that the cause of action against J. G. Kelley should be dismissed.” This appeal followed. There appears to, be little, if any, dispute as to the material facts, as above abstracted. Under the provisions of the conditional sales agreement, supra, and the facts presented, the Commercial Credit Corporation held title to secure the unpaid balance on the car in question from the date of the execution of the note and sales agreement until appellees paid this balance due to the agent of the Credit Company. When the Credit Company, through its authorized agent, receipted appellees for this payment, — the balance which Bill Johnson owed on the cary— and promised to deliver the original papers, which it was unable to do for the reason that they were lost or misplaced, but, in fact, did cause to be furnished appellees authentic photostatic copies thereof, an assignment, in effect, of title and all interest of the Credit Company, was consummated in favor of appellees and they acquired the title and interest of the Credit Company in the automobile in question. Under the topic "Assignments”, 6 C. J. S., § 46, p. 1094, the rule is announced in this language: "A parol assignment may be inferred from the conduct of the parties. There must, however, be an appropriation of the debt or fund, and the assignor must confer the complete right or interest in the subject-matter of the assignment on the assignee and surrender all control over it, even if the circumstances do not permit the assignee to take immediate possession thereof.” The judgment of the trial court was correct and accordingly we affirm.

George Rose Smith, J. Appellant brought this action for a writ of mandamus to compel the county treasurer to pay school warrants in the amount of $180. The appeal is from the trial court’s refusal to grant the relief sought. These warrants wqre issued by School District No. 27 in October and November, 1944, ostensibly in payment for services performed by Sarah Burton as a school teacher and by her brother as a janitor. They were presented to the county superintendent for countersignature as required by Ark. Stats. (1947), § 80-1004, but for reasons not disclosed by the record that official refused to sign them. No further action appears to have been taken by the payees until April, 1948, when the appellant, to whom the warrants had been assigned for convenience, filed a suit to compel the superintendent to sign the warrants and the county treasurer to pay them. The court ordered the superintendent to affix his signature but dismissed the action as to the treasurer, without prejudice. In obedience to the court’s order the superintendent countersigned the instruments. The present suit was then brought. At the trial it was shown that District No. 27 had gone out of existence in 1947, having become a part of Consolidated.District No. 2. The appellee defended the suit on the ground that she had no funds to the credit of District No. 27 and that she was prohibited by Ark. Stats. (1947), § 80-1003, from paying out of current revenues school indebtedness incurred in an earlier year. We find it unnecessary to decide these questions, as we have concluded that the appellee is not the proper defendant. Although it is provided by Ark. Stats. (1947), § 80-423, that a consolidated district is liable for the debts of its constituent districts, the statute also states that it may be sued therefor. We do not construe the. Act to mean that the new district must pay every outstanding warrant issued by its predecessors, regardless of validity. It may be that the warrants now presented are invalid for any of several possible reasons, such as forgery of the directors’ signatures, want of consideration, etc. The real party in interest is the consolidated district, whose funds will be used to pay the claims. It has not been made a party to either suit and has had no opportunity to present its defenses. It is not unreasonable to assume that its directors have a reason for failing to set aside funds for the payment of these warrants. If there is a valid defense it would he circumvented if the appellant were permitted to proceed directly against the county superintendent and treasurer, without making the district a party. We accordingly affirm the action of the trial court, without prejudice to appellant’s right to pursue the consolidated district.

Holt, J. April 27, 1948, the City of Hot Springs enacted the following Ordinance: “ORDINANCE NO. 2186 — AN ORDINANCE PROHIBITING THE OPERATION OF CERTAIN GROCERY STORES AND/OR MEAT MARKETS ON SUNDAY AND FOR OTHER PURPOSES. “WHEREAS, a custom has recently arisen in the City of Hot Springs whereby a large number of employees have been required to perform services on Sunday in various large grocery stores and/or meat markets, which has deprived said employees of their day of rest and worship, and, “WHEREAS, this condition is intolerable by reason of the exacting duties required of said employees and should be remedied. “NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF HOT SPRINGS, ARKANSAS: “SECTION 1. Every person who shall, on Sunday, keep open any grocery store and/or meat market, which is staffed, maintained and/or operated by more than two persons, whether owners and/or employees, or retail any goods, wares or merchandise therefrom, or who shall keep the doors of the same so as to afford ingress or egress, shall, on conviction thereof be fined in any sum not less than twenty-five dollars nor more than one hundred dollars; provided that charity or necessity on the part of the'customer may be shown in justification of the violation of this ordinance. “The purpose of this ordinance is to prohibit the operation of grocery stores and/or meat markets on Sunday where more than two persons, whether owners and/or employees are required to staff, maintain and operate same. “SECTION 2. All ordinances or parts of ordinances in conflict herewith are hereby repealed. “SECTION 3. It is found and declared in many instances in the City of Hot Springs that the employees of the larger grocery stores and/or meat markets are forced to work in said stores and/or meat markets on Sundays and are thereby denied their right to attend church services and are denied their day of rest and worship, and it is further found and declared that there is no inspection on Sundays of fresh meats, goods, wares and merchandise sold by said stores, which creates a health hazard, and because of these conditions and this ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage and approval. ’ ’ On May 8, thereafter, appellee, Gray, was convicted in the Municipal Court of that city of violating this ordinance and fined $25. He was thereafter twice tried and convicted for two other separate and similar offenses and fined $25 in each of these cases. On appeal to the Circuit Court, the three charges were, by agreement, consolidated for trial. It was stipulated that appellee operated a grocery store in Hot Springs, that more than two persons were employed therein, and that the facts were the same in each of the three cases. Appellee defended on the ground that the ordinance, supra, was void and unconstitutional. The trial court sustained appellee’s contention. The decree recites: “The ordinance is declared unconstitutional, and the convictions of the defendant by the Municipal Court of Hot Springs are reversed and the appeals dismissed.” From the judgment comes this appeal. We have many times announced the rule that: “ ‘Counties, cities and towns, * * * are municipal corporations, created by the authority of the Legislature; and they derive all their powers from the source of their creation, except where the Constitution of the State 'otherwise provides.’ ” Eagle et al v. Beard et al, 33 Ark. 497, and in Kitchens v. Paragould, 191 Ark. 940, 88 S W 2d 843, we said: “We must say, when the issue is properly presented, whether legislation is in conflict with provisions of the Constitution. Ordinarily we look only to the statutes to determine what powers have been delegated to cities and towns. We regard as axiomatic that cities and towns are creatures of the Legislature, subject to its control, and that they can function only within the limits fixed by law. Eagle v. Beard, 33 Ark. 497.” Section 41-3802, Ark. Stats. (1947) enacted more than a century ago, provides: “Keeping store or doors open on Sunday — Penalty.—Every person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingrees (ingress) or egrees (egress), or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five ($25) dollars, nor more than one hundred dollars ($100). (Rev. Stat. ch. 44, div. 7, art. 2, § 5; Act. March 2, 1885, No. 33, § 2, p. 37; C. & M. Dig., § 2736; Pope’s Dig., § 3421.)” This section of the statute was held constitutional by this court in Shover v. State, 10 Ark. 259. Its terms are so plain and understandable that no judicial construction is required. Keeping open “any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery,” is obviously forbidden. It could make no difference whether the grocery store, in the present case, was operated by the owmer, with or without the assistance of one or more employees, the Legislative mandate prohibits it. We think it obvious from the mere reading of the ordinance that it is void for the reason that it attempts, in effect, to permit grocery stores employing less than two people to open and operate on Sunday. The ordinance is in the very'teeth of the statute and therefore void. It does not follow, however, that the judgment of the trial court should be affirmed. The Municipal Court had jurisdiction of the charges against appellee under the above provision of our State law and it could make no difference that the Ordinance under which he was prosecuted and convicted was void as inconsistent with the above statute. “ ‘Though a town ordinance under which defendant' was prosecuted * * * was void as inconsistent with the state law, a conviction in the mayor’s court must stand, where the crime charged was covered by a statute, since the mayor had jurisdiction as justice of the peace to enforce the statute.’ To the same effect, see, also, Marianna v. Vincent, 68 Ark. 244, 58 S. W. 251; Watts v. State, 160 Ark. 228, 254 S. W. 486; Fly v. Fort Smith, 165 Ark. 392, 264 S. W. 840; Wilson v. Batesville, 179 Ark. 1094, 20 S. W. 2d 114,” Thompson v. City of Little Rock, 194 Ark. 78, 105 S. W. 2d 537. In Marianna v. Vincent, supra, this court held: (Headnote) “Defendant was charged before the mayor of an incorporated town with selling liquor without license, and convicted of violating a town ordinance prohibiting the sale of liquor without license. On appeal to the circuit court he was discharged on the ground that the ordinance under which he was convicted was void. On appeal to the supreme court, held that, whether the ordinance in question was void or not, the mayor, having the same criminal jurisdiction as a justice of the peace (Sand. & H. Dig., § 5258), had jurisdiction to try him for a violation of Sand. & H. Dig., § 4862, making it a misdemeanor to sell liquor without a license,” and in the body of the opinion, it was said: ‘ ‘ The mayor having once obtained jurisdiction, the case should not have been subsequently dismissed for want of jurisdiction by the circuit court, merely on mistakes of law made by the mayor, or for any other irregularity; but it should have proceeded to try the case de novo, and render such judgment, as was proper therein. ' The- judgment of dismissal is therefore reversed, and the cause is remanded for further proceedings not inconsistent herewith.” So here, in the circumstances, the Circuit Court, on appeal, should have proceeded to try the charges against appellee ele novo and render such judgment as was proper. For the error indicated, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion. Grieein Smith, C. J. and Justices McFaddin and George Rose Smith concur.

George Rose Smith, J. The question presented by this appeal is whether a $1,000 policy of accident insurance issued by the appellee to Brunck Lewis was in force when the insured was killed accidentally on April 4,1947. The policy was issued on May 16, 1946, for an original term ending July 1 of that year. A monthly renewal premium was paid by the insured on July 31, and a similar payment was made on the last or next to the last day of each succeeding month until the final payment on February 28, 1947. This is the pertinent language in the policy; “Upon the expiration of the original term, or any subsequent term for which this policy may have been renewed, the insured may, with the consent of the Company, renew the policy . . . for a term of one month by the payment of one-third of the quarterly premium. A grace period ending ... on the thirty-first day after any renewal premium falls due, during which period this insurance shall he in full force and effect, will be allowed in the payment of all renewal premiums. If any renewal premium has not been received by that time . . . the policy shall expire. . . .” There is also a provision for reinstatement in the event of lapse. Appellant contends that there was no grace period at the end of the original term. If this were true the policy lapsed on July 1 and was reinstated upon July 31. Upon that theory all monthly premiums were paid in advance, so that death occurred during the period of grace for payment of the April premium. But even when the policy is construed most strongly against the appellee, this meaning cannot be wrung from its language. The contract states plainly that it may be renewed upon the expiration of the original term and that a grace period is allowed after any renewal premium falls due. Hence all monthly payments were made in time to prevent lapse, and the policy continued in force until thirty-one days after March 1, the due date of the premium that was not actually paid. As death occurred after the policy had lapsed, the appellant is not entitled to recover. In the alternative appellant contends that the appellee, by accepting payments on the last day of each month, changed the premium date from the first to the last day of each month. Upon this premise the March premium was not due until March 31; so death occurred within the period of grace. But since the insured had the privilege of making payment on the last day of each month if he liked, the appellee’s acceptance of each premium was simply a compliance with its contract and did not operate to change the due date. Affirmed.

CLIFF HOOFMAN, Judge | Appellant Kathy Gene Griffin appeals from her conviction for first-degree failure to report child maltreatment as a mandated reporter in violation of Ark. Code Ann. § 12-18-201 (Repl. 2009). She was sentenced by the jury to one year of probation and a $2500 fíne. Griffin argues on appeal (1) that the circuit court should have granted a directed verdict because there was insufficient evidence to convict her under Ark. Code Ann. § 12-18-201; (2) that if this statute is ambiguous, it should be interpreted in her favor under the rule of lenity; (8) that the circuit court erred in refusing necessary and relevant jury instructions; and (4) that the circuit court erred by limiting the presentation of exculpatory evidence and the cross-examination of prosecution witnesses. We affirm. Griffin was charged in June 2012 with violating Ark. Code Ann. § 12-18-201, failure to notify by a mandated reporter in the first degree. The information alleged that Griffin, on or about February 1, 2012, through March 14, 2012, had reasonable cause to suspect that a |2child had been subjected to child maltreatment and had knowingly failed to notify the child-abuse hotline. At the jury trial held in September 2013, the following evidence was presented. Robert Shamburger, the father of the victim, M.K.S., testified that his daughter’s birthday was on October 25,1993, and that she had turned eighteen on October 25, 2011. According to Mr. Shamburger, on February 24, 2012, M.K.S. disclosed to him that she had previously had a sexual relationship with Kelly O’Rourke, a math teacher and volleyball coach at Mount St. Mary Academy in Little Rock, where M.K.S. had attended high school. M.K.S. indicated that this relationship had begun when she was sixteen and that it had recently ended. Mr. Shamburger immediately contacted his wife, Sarah Shambur-ger, who was also a teacher at Mount St. Mary. The Shamburgers testified that M.K.S. was extremely upset and depressed about the break-up and that she did not want them to report O’Rourke to the authorities. The Shamburgers met with O’Rourke on Sunday, February 26, 2012, and told her that she needed to resign from the school the next morning. Later that evening, the Shamburgers received a phone call from Griffin, who was employed at Mount St. Mary as a school counselor, dean of discipline, and athletic director. O’Rourke and Griffin were also long-term roommates. Griffin convinced the Sham-burgers that, for the good of the school and their relationship with their daughter, they should not report the inappropriate relationship to the police at that time. Instead, Griffin stated that the Shamburgers should view the incident “as a bad breakup” and that they should wait until the end of the year, when Griffin and O’Rourke would quietly resign from the school. |sThe Shamburgers agreed to wait one week, stating that they had their hands full with M.K.S., who had become uncontrollable and suicidal. The following weekend, Griffin again phoned the Shambur-gers and convinced them not to report O’Rourke for another week. The Sham-burgers stated that they agreed to wait because Griffin was a trusted school official and an acquaintance. However, they had also been seeking counseling for M.K.S., and when Griffin phoned the Shamburgers on Friday, March 9, 2012, they told her that they had an appointment with a counselor the following Monday and that the counselor had informed them that she was a mandated reporter who would be required to notify the child-abuse hotline. On the morning of Sunday, March 11, Griffin phoned the Shamburgers and asked if a report would still be made if O’Rourke agreed to resign right away. Mr. Shamburger informed Griffin that the relationship would still be reported. Griffin then anonymously made a report to the child-abuse hotline and also told Diane Wolfe, the principal at Mount St. Mary, who made a second report to the hotline later in the day on March 11. On Monday, March 12, Mr. Shamburger testified that he and his wife met with the counselor, Bonnie Thomas, and then met with Wolfe and other school officials. According to Mr. Shamburger,' that was the last day that Griffin and O’Rourke worked at Mount St. Mary. O’Rourke also testified and admitted that she was M.KS.’s teacher and coach and that she had a sexual relationship with M.K.S. from January 10, 2010, through January 2012. O’Rourke testified that she had pled guilty to first-degree sexual assault and that she had also pled guilty to violating the conditions of her suspended sentence by contacting M.K.S. while she was in prison. O’Rourke stated that she told Griffin, who was her roommate at the time, 14about the relationship on February 24, 2012, after M.K.S. had told her parents. According to O’Rourke, she had initially agreed to resign after meeting with the Shamburgers on February 26, 2012, but Griffin convinced them to give her a couple of weeks. O’Rourke testified that Griffin did not report her to the hotline until March 11, after Griffin was informed that a third party would be reporting the relationship, and that Griffin was upset about making the report because she felt that she would be sentencing O’Rourke to jail. When questioned as to whether Griffin was aware of her relationship with M.K.S. before February 24, 2012, O’Rourke testified that she had denied an inappropriate relationship with the girl when Griffin had inquired about it on several occasions prior to that date. Gary Glisson, the administrator for the state child-abuse hotline, confirmed that there was an anonymous report made on the morning of March 11, naming O’Rourke as the offender and M.K.S. as the victim. The parties stipulated that this report was made by Griffin. Glisson stated that there was a second report made by Diane Wolfe on the afternoon of March 11 and a third report on March 12 by Bonnie Thomas. Glisson explained that the hotline operators do not investigate the reports but that they assign it to a law-enforcement agency for further investigation. Glisson testified that anonymous reports are acceptable as long as ample information is given to identify the relevant parties. At the conclusion of the trial, Griffin was convicted by the jury of first-degree failure to notify by a mandated reporter, and she was sentenced to one year of probation and a $2500 fine. The judgment and commitment order was entered on September 26, 2013, and Griffin filed a timely notice of appeal. |sIn her first point on appeal, Griffin argues that the circuit court should have granted her a directed verdict, as there was insufficient evidence presented to show that she violated Ark. Code Ann. § 12-18-201. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On appeal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Arkansas Code Annotated section 12-18-201 (Repl. 2009) states, (a) A person commits the offense of failure to notify by | ^ mandated reporter in the first degree if he or she: (1) Is a mandated reporter under this chapter; (2) Has: (A) Reasonable cause to suspect that a child has been subjected to child maltreatment; (B) Reasonable cause to suspect that a child has died as a result of child maltreatment; or (C) Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment; and (3) Knowingly fails to notify the Child Abuse Hotline of the child maltreatment or suspected child maltreatment. (b) Failure to notify by a mandated reporter in the first degree is a Class A misdemeanor. A “child” is defined as an individual who is from birth to eighteen years of age, and “child maltreatment” includes abuse, sexual abuse, neglect, sexual exploitation, or abandonment. Ark. Code Ann. § 12-18-103(5) & (6) (Repl. 2009). An individual listed as a mandated reporter shall “immediately” notify the hotline if he or she reasonably suspects child maltreatment has occurred, and the list of “mandated reporters” includes individuals who are school counselors, school officials, and teachers. Ark. Code Ann. § 12-18-402(a) & (b)(22), (23) & (26) (Repl. 2009). Although Griffin admits that she was a mandated reporter, she contends, as she did in her direeted-verdict motion at trial, that she had no obligation under this statute to report O’Rourke to the child-abuse hotline because M.K.S. was an adult when Griffin learned of the abuse. As support for her argument, Griffin cites to another statute in the Child Maltreatment Act, Ark. Code Ann. § 12-18-306 (Repl. 2009), which is found in the subchapter governing the Child Abuse Hotline and which states, The Child Abuse Hotline shall accept a report of sexual abuse, sexual contact, or sexual exploitation naming an adult as the victim only if: (1) The alleged offender is a caretaker of a child; and (2) The person making the report is one (1) of the following: (A) The adult victim; (B) A law enforcement officer; (C) The adult victim’s counselor or therapist; (D) The alleged offender’s counselor or therapist; or (E) The alleged offender. Because this statute limits the reports that must be accepted by the hotline when the named victim is an adult to certain categories of reporters, which Griffin asserts do not include her, she argues that Ark. Code Ann. § 12-18-201 should be interpreted as imposing no obligation on her to report O’Rourke to the hotline. 17We review questions of statutory interpretation de novo on appeal, and criminal statutes are strictly construed, with any doubts being resolved in favor of the defendant. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). The primary rule of statutory construction is to give effect to the intent of the legislature. Id. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Id. The State asserts that the language in Ark. Code Ann. § 12-18-201 is plain and unambiguous and that the evidence in this case was sufficient to show that Griffin violated the statute by knowingly failing to report O’Rourke for more than two weeks after she had direct knowledge of the maltreatment. We agree. While Griffin argues that the statute did not apply in this case because M.K.S. was eighteen years old before Griffin learned of the inappropriate relationship with O’Rourke, Ark. Code Ann. § 12-18-201 contains no such limitation. Instead, the statute is written in the past tense to include “a child [who] has been subjected to child maltreatment.” Ark. Code Ann. § 12-18-201(a)(2) (emphasis added). Thus, by its plain language, the statute includes the situation here, where Griffin discovered that M.K.S. had been subjected to child maltreatment when she was in high school and under the age of eighteen. It is true, as Griffin argues, that statutes relating to the same subject matter are said to be in pari materia with each other and should be interpreted in a harmonious manner if possible. Sesley v. State, 2011 Ark. 104, 380 S.W.3d 390. However, Ark. Code Ann. § 12-8-306 does not dictate a contrary result, as it is found in a separate subchapter discussing the responsibilities of the child-abuse hotline, and it does not affect the unambiguous language governing mandated reporters found |9in Ark. Code Ann. § 12-18-201. Furthermore, while Griffin contends that it would be an absurd result if the statute were interpreted to require mandated reporters to make a hotline report where the victim is now an adult, as the alleged conduct may have taken place “decades in the past,” the State correctly notes that the purpose of the Child Maltreatment Act is not only to protect a maltreated child, but also to protect “any other child under the same care who may also be in danger of maltreatment.” Ark. Code Ann. § 12-18-102(3)(A) (Repl. 2009). Griffin also argues that there was insufficient evidence to show that she violated Ark. Code Ann. § 12-18-201 because she did in fact report the maltreatment to the child-abuse hotline on March 11, 2012. While Ark. Code Ann. § 12-18-402(a) states that a mandated reporter must report any alleged maltreatment “immediately,” Griffin argues that this requirement of immediacy is not found in Ark. Code Ann. § 12-18-201 and that it was therefore not an element of the charged offense. We disagree, as the prosecution must prove that a person is a “mandated reporter” in order to show a violation of Ark. Code Ann. § 12-18-201. However, this term is not specifically defined in that statute. Thus, the language in Ark. Code Ann. § 12-18-402, which is a separate statute that discusses and defines mandated reporters, clearly applies to the offense of failure to notify by a mandated reporter, and the jury was properly instructed as to this requirement of immediacy when it was given the statutory definition of a mandated reporter along with the other statutory definitions of relevant terms in Ark. Code Ann. § 12-18-201, such as “child” and “child maltreatment.” Griffin further contends that the inclusion of the word “immediately” renders the statute unconstitutionally vague because there is no statutory definition of that term, and the statute therefore fails to give fair notice as to what conduct is prohibited. As our supreme court stated in Talbert v. State, 367 Ark. 262, 271, 239 S.W.3d 504, 512 (2006), A law is unconstitutionally vague if it does not give a person of ordinary intelligence fair notice of what conduct is prohibited. Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). There must be ascertainable standards of guilt in a statute so that a person of average intelligence does not have to guess at its meaning. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). To challenge a statute on grounds of vagueness successfully, the party must be one of the “ ‘entrapped innocent,’ who has not received fair warning.” Reinert, 348 Ark. at 5, 71 S.W.3d at 54 (citing Ross v. State, 347 Ark. 334, 336, 64 S.W.3d 272, 273 (2002)). If a person’s conduct clearly falls within what is prohibited, that person cannot complain that the statute is vague. See id. In the present case, Griffin cannot complain that inclusion of the word “immediately” renders the statute vague, as her conduct of purposely delaying making a report to the child-abuse hotline for more than two weeks after acquiring direct knowledge of the child maltreatment clearly did not satisfy the requirement of immediacy that is placed on a mandated reporter. See id. Thus, there was substantial evidence to support Griffin’s conviction, and we affirm on this point. In her second point on appeal, Griffin argues that, if the language in Ark. Code Ann. § 12-18-201 is found to be ambiguous with regard to whether a mandated reporter is required to report the abuse of someone who has attained adulthood at the time the reporter acquires this information, the statute must be interpreted in her favor as the criminal defendant under the rule of lenity. However, as discussed under the first point on appeal, the language in Ark. Code Ann. § 12-18-201 is not ambiguous; thus, there is no doubt or ambiguity to be resolved in favor of Griffin. See Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007). As the State asserts, the rule of lenity is therefore inapplicable. We affirm on this point as well. In her third point on appeal, Griffin contends that, even if a directed verdict should not have been granted, the circuit court erred in refusing necessary and relevant jury instructions. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). A circuit court’s decision on whether to give an instruction will not be reversed unless the court abused its discretion. Id. Non-model jury instructions should be given only when the trial court finds that the model instructions do not accurately state the law or do not contain a necessary instruction. Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008). As Griffin asserts, there was no model jury instruction on the charge of first-degree failure to notify by a mandated reporter. However, the instruction prepared by the State that was accepted by the circuit court and given to the jury tracked the statutory, language in Ark. Code Ann. § 12-18-201. Griffin proffered her own instruction, which was identical to the State’s except that it added the language, “There is no requirement to report if the reasonable cause to suspect arises after the suspected victim had attained her 18th birthday.” The circuit court rejected this instruction on the ground that this proffered language was not contained in the statute. |1TAs was discussed earlier under Griffin’s first point on appeal, the plain language in Ark. Code Ann. § 12-18-201 does not state that the victim must be a child at the time the mandated reporter is required to make a report to the hotline. Thus, Griffin’s proffered instruction was not a correct statement of the law, and the circuit court did not abuse its discretion by refusing to give it. Griffin proffered a second jury instruction that was rejected by the circuit court that tracked the language of Ark. Code Ann. § 12-18-306, which, as was discussed earlier in this opinion, concerns the responsibilities of the child-abuse hotline where the victim is an adult. The State objected to this instruction, arguing that this statute was not relevant to the duties of a mandated reporter, and the circuit court agreed. This was not an abuse of discretion, as Griffin was charged with failure to notify as a mandated reporter under Ark. Code Ann. § 12-18-201, and a separate statute setting forth the duties of the child-abuse hotline was not relevant to the jury’s determination of Griffin’s guilt on this charge. We therefore affirm on this point on appeal. In her final point on appeal, Griffin contends that the circuit court erred by not allowing her to present exculpatory evidence and by limiting her cross-examination of prosecution witnesses. Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Griffin sought at trial to admit additional portions of the recorded hotline calls, as well as testimony by Glisson, involving statements made by hotline personnel about their beliefs 112as to when and from whom the hotline could accept a report when the victim is an adult. These proffered statements were to the effect that the Arkansas Department of Human Services would not conduct an investigation of the allegations unless M.K.S. called in the report herself, due to the fact that she was now an adult. The circuit court excluded this evidence, finding that it was not relevant to the issue of whether Griffin was guilty of violating Ark. Code Ann. § 12-18-201. Griffin argues that an interpretation of a statute by the agency administering that statute is relevant to whether an offense was committed and that the circuit court abused its discretion in excluding this evidence. However, as the circuit court found, this evidence related to the child-abuse hotline’s responsibilities under the statutes governing the hotline and was not relevant to the question of whether Griffin violated Ark. Code Ann. § 12-18-201, the statute under which she was charged. Griffin further contends that this evidence was probative of whether she had the culpable mental state of “knowing” or “reckless” and was thus relevant to the determination of whether she was guilty of first-degree or second-degree failure to report. Again, however, the hotline personnel’s opinion and interpretation of a separate statute relating solely to the duties of the child-abuse hotline were not relevant to Griffin’s intent, as a mandated reporter, in failing to comply with Ark. Code Ann. § 12-18-201. Thus, the circuit court did not abuse its discretion in-ruling that this evidence was inadmissible. Griffin also argues under this point on appeal that the circuit court abused its discretion in refusing to permit a full cross-examination of Diane Wolfe, the principal of Mount St. |1sMary, in regard to a policy of the Catholic Diocese on the sexual abuse of minors. This policy, which was provided to the defense during discovery, contained provisions stating that “[a]s long as the alleged victim is a child at the time when the allegations come to light, all allegations of sexual abuse will be reported[,]” and that “[a]llegations of sexual abuse perpetrated on an alleged victim who is presently no longer a minor, but was a minor at the time of the incident, should be directed to the bishop for appropriate investigation and action, even if the statute of limitations has expired.” Although the circuit court had ruled pri- or to trial that this evidence would be excluded, Wolfe testified in her direct examination that she had consulted the Diocese website after learning of the allegations, “which pretty much gave us a checklist to follow.” Griffin then argued that the prosecution had opened the door to introduce the written Diocese policy, and the circuit court agreed. However, in cross-examination, Wolfe ■ then testified that Mount St. Mary was not governed by the Little Rock Diocese but instead by the Sisters of Mercy. Upon further questioning by the court outside the presence of the jury, Wolfe explained that the Sisters of Mercy did not have a written policy and that she had merely referred to the Diocese website checklist as a resource. The court then ruled that the Diocese policy was inadmissible, although the defense could question Wolfe about the checklist. During further cross-examination, Wolfe testified that she had consulted the Diocese website on March 11, but that she did not actually refer to the written policy of the Diocese on that day. Griffin then proffered the policy as an exhibit. Griffin contends on appeal that the circuit court’s restriction of her cross-examination 114of Wolfe about the written policy was a “manifest abuse of discretion” under the circumstances, given that Wolfe had asserted that she had examined and followed the policy and that it supported Griffin’s interpretation of the statute with which she was charged. Contrary to Griffin’s argument, however, Wolfe testified that she did not refer to the written policy on March 11, the day she phoned the hotline. Instead, after further examination by the circuit court, Wolfe made it clear that she had only consulted the checklist on the Diocese website on March 11. Thus, as the State argues, the circuit court did not abuse its discretion in excluding evidence of the policy, as it was irrelevant to the issues at trial. See Epps v. State, 72 Ark. App. 370, 38 S.W.3d 899 (2001) (holding that there is no right to cross-examine a witness on irrelevant matters). We therefore affirm on this point on appeal as well. Affirmed. Whiteaker and Vaught, JJ., agree. . This statute was amended in 2013; however, both parties agree that the 2009 version applies to this case.

MOTION TO DISMISS ON BEHALF OF DR. TRENT P. PIERCE PER CURIAM. Appellee Dr. Trent P. Pierce has filed a motion to dismiss this appeal from the Crittenden County Circuit Court on the grounds that there has not been a final judgment entered in the case. We grant the motion and dismiss the appeal because not all of the claims against all the parties have been resolved and there has been no certification pursuant to Arkansas Rule of Civil Procedure 54(b) (2008) that there is no need for delay in deciding the case with respect to the parties now before us. Appellants filed suit against the appel-lees on July 7, 2006. In an order dated September 28, 2008, the trial court granted motions to dismiss as to appellees Frank G. Witherspoon, Jr. and Memphis Dermatology Clinic. The trial court also granted summary judgment to appellees Trent P. Pierce (as to the claim asserted by the Estate of Norma Louise Ramsey only) and Bertram D. Kaplan on October 8, 2008, and October 15, 2008, respectively. Appellants filed a notice of appeal of the orders granting the motions to dismiss as well as the order granting summary judgment to Trent P. Pierce, on September 30, 2008, and filed an amended notice of appeal on November 5, 2008, to include the orders granting summary judgment. In the notice of appeal, appellants claim to be appealing pursuant to Rule 2(a)(ll) of the Arkansas Rules of Appellate Procedure — Civil; however, Rule 2(a)(ll) states that an appeal may be taken from: An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure[.] In this case, the individual claims filed by appellants were not dismissed in Pierce’s grant of summary judgment, and there are still several claims against the remaining defendants that remain pending. And there is no evidence in the record that a Rule 54(b) certificate was requested of or issued by the trial court. The failure to comply with Rule 54(b) presents a jurisdictional issue in this court, and absent compliance with the Rule, we dismiss the appeal for lack of a final order. Ashmore v. Paccar, Inc., 315 Ark. 490, 868 S.W.2d 80 (1994). Motion granted; appeal dismissed.

JOSEPHINE LINKER HART, Associate Justice hThe State of Arkansas appeals from the grant of a motion to dismiss first-degree-murder charges against Frederick David Owens, Jr. Owens had asserted, and the State conceded, that Owens had not been brought to trial within the time specified by Rule 28.1 of the Arkansas Rules of Criminal Procedure. On appeal, the State argues that the “mechanical” application of Rules 28.1 and 30.1 of the Arkansas Rules of Criminal Procedure in resolving speedy-trial issues does not comport with a more “flexible” approach required by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Oh September 6, 2012, the State charged Owens with the first-degree murder of | ¡¿Donovan France Buck in Prairie County Circuit Court. Owens had been arrested on September 1, 2012, the night of the murder. On October 15, 2012, defense counsel moved for a continuance until the following term, which resulted in a trial date of March 19, 2013. On August 5, 2015, the State wrote a letter to defense counsel seeking cooperation in securing a trial dáte. A jury trial was then set for February 8-10, 2016. However, because the medical examiner was not available to testify on those dates, the deputy prosecutor successfully moved on January 12, 2016, without objection from Owens, for a continuance until the next available trial date. A three-day trial was eventually scheduled for April 27-29, 2016. Two days before trial, Owens filed a “Motion to Dismiss Sua Sponte,” arguing that his right to speedy trial under the Arkansas Rules of Criminal Procedure and the Sixth Amendment to the United States Constitution had been violated. In its response, the State acknowledged that, excluding for speedy-trial purposes the 154 days resulting from Owens’s continuance request, his one-year speedy-trial deadline ran on February 2, 2014. Nonetheless, the State argued that the circuit court should not rely on the Arkansas Rules of Criminal Procedure; rather, it should apply a four-factor balancing test that considers the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. |sThe circuit court rejected the State’s argument, finding that the speedy-trial rules as stated in the Arkansas Rules of Criminal Procedure had not been followed, and dismissed the charge against Owens. On appeal, the State again argues that the circuit court’s “mechanical” application of Rules 28.1 and 30.1 of the Arkansas Rules of Criminal Procedure in resolving speedy-trial issues did not comport with a more flexible approach recognized by the Supreme Court of the United States in Barker v. Wingo. Further, the State contends that the circuit court effectively rewarded Owens for his eleventh-hour invocation of our speedy-trial rules, which is “flatly inconsistent” with our decision in Jolly v. State, 358 Ark. 180, 189 S.W.3d 40 (2004), and is “unnecessary to protect” Owens’s constitutional right to a speedy trial. As a threshold matter, we must first determine whether the State may appeal the circuit court’s ruling. State v. Johnson, 374 Ark. 100, 286 S.W.3d 129 (2008). The State’s right to appeal is limited to the provisions of Ark. R.App. P.—Crim. 3, which provides that we will accept such appeals only for “the correct and uniform administration of the criminal law.” The correct and uniform administration of justice is at issue only when the question presented is solely a question of law and does not turn on the facts in the case appealed. \ Johnson, supra. Furthermore, we will only review appeals taken by the State which are narrow in scope and involve the interpretation of law and which present an issue of interpretation of the criminal rules or statutes with widespread ramifications. State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005). We have several times considered — and rejected — appeals by the Sate of Arkansas in which it urged us to review cases dismissed pursuant to our speedy-trial rules. See Johnson, 374 Ark. 100, 286 S.W.3d 129 (dismissing appeal where the issue involved the circuit court’s reason for disallowing excludable time); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1998) (dismissing appeal because review depended upon an application of the rule to the facts and not on interpretation of the rule); State v. Tipton, 300 Ark. 211, 779 S.W.2d 138 (1989) (dismissing appeal because challenge to disallowing excludable time did not involve the correct and uniform administration of the criminal law). In each of these cases, the fact-intensive nature of speedy-trial jurisprudence militated against this court accepting an appeal by the State. We likewise conclude that the instant appeal should be dismissed. While purporting to raise purely an issue of law, the legal issue cannot be separated by the unique facts of the case before us. Accordingly, this is not a proper State appeal. Edwards, supra. Moreover, we note that contrary to the State’s assertions, Arkansas’s speedy-trial [¿jurisprudence does not offend the requirements set forth by the Wingo Court, which dictates only that a trial court conduct an “ad hoc” determination of whether a defendant’s right to a speedy trial had been violated. Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988). Accordingly, we dismiss this case as not a proper State appeal. Appeal dismissed. Wood and Womack, JJ., dissent. . In Betterman v. Montana, - U.S. -, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016), the Supreme Court of the United States abrogated Jolly v. State.

ROBERT J. GLADWIN, Judge I, Donnie Slater appeals the Arkansas County Circuit Court’s order denying his Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam), Slater contends that the trial court erred in denying-his petition because (1) trial counsel was ineffective at trial because he failed to do an adequate pretrial investigation and properly prepare for trial; (2) trial counsel failed to make a specific directed-verdict motion causing the issue to be waived on appellate review; (3) trial counsel was ineffective for not objecting to the State’s presenting evidence of Slater’s prior felonies following the guilty verdict; (4) trial counsel failed to object when the trial court sentenced Slater to an illegal ten-year enhancement under Arkansas Code Annotated section 5-64-411 (Repl. 2016) because when the trial court lacked authority to impose it; (5) trial counsel was ineffective |gfor hot objecting to the State’s introduction into evidence the crime-lab reports and drugs; (6) appellate counsel was ineffective for failing to discuss possible errors that were apparent on the face of the abstract and addendum; (7) appellate counsel was ordered by the Arkansas Court of Appeals to file a substituted appeal brief, and counsel failed to send Slater a copy of the substituted brief at Slater’s request; (8) trial counsel was ineffective for failing to move for a mistrial when information concerning Slater’s criminal history was disclosed during voir dire and during the testimony of a witness at the guilt stage of the. trial; (9) trial counsel was ineffective for failing to object to the testimony of Arkansas State Police - Special Agent Scott Russell; and (10) trial counsel was ineffective for failing to object to the proximity enhancement because no proof was offered during trial. We note, as a preliminary matter, that both the original and the second amended sentencing orders contain clerical errors in that they do not reflect that Slater was convicted as a habitual offender; however, he was charged and convicted as a habitual offender. We order the circuit court to correct the clerical error in the second amended sentencing order to reflect that Slater was. convicted as a habitual offender. Accordingly, we affirm in part and remand in part for the correction of the second amended sentencing order. The State charged Slater by information with two counts of delivery of a controlled substance and two counts of use of a communication device in connection with the deliveries. The State also charged him as a habitual offender and sought a proximity enhancement. laFollowing the. trial on March 14, 2013, the jury found Slater guilty of one count of delivery of a controlled substance (Count 2) and one count of use of a communication device (Count 4) and determined that the delivery had occurred within 1000 feet of a daycare facility. The jury found Slater not guilty of the other delivery and communication-device counts (Counts 1 and 3). Slater was sentenced to twenty years’ imprisonment on the delivery charge and ten years’ imprisonment on the communication-device charge. The circuit court sentenced Slater in accord with the jury’s recommendation and ordered the sentences to run consecutively for a total of thirty years in the Arkansas Department of Correction. The ten-year proximity enhancement was added to the sentence in keeping with the jury’s finding that the drug delivery occurred within 1000 feet of a day care facility. Slater appéaled to this court, which affirmed his conviction ’ on February 18, 2015. Slater v. State, 2015 Ark. App. 94, 2015 WL 711708. After recalling the initial mandate of March 10, 2015, we issued a final mandate on April 1, 2015. Slater filed a timely petition for relief under Rule 37.2 on May 29, 2015, and supplemented it by an amendment on August 25, 2015, containing proper verifica tions and alleging a total of ten instances of ineffective assistance of counsel. The State filed a response on June 5, 2015, and the Arkansas County Circuit Court held an evidentiary hearing on September 23, 2015, during which Slater’s counsel withdrew the tenth claim. The circuit court denied relief on claims one through nine in a twelve-page written order entered on ^November 3,2015. Slater filed this appeal pro se on November 24, 2015, contending that the circuit court erred by denying relief on all ten grounds asserted in both his petition and his amended petition. We do not reverse the denial of postcon-viction relief unless the circuit court’s findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id. Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Conley, supra. In asserting ineffective assistance of counsel under Strickland, the petitioner must first demonstrate that counsel’s performance was deficient. Rose v. State, 2017 Ark. App. 355, 526 S.W.3d 11. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. | ¡¡Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that “there is no reason for a .court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). The concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel). Many of Slater’s arguments on appeal are quite different from those made in both his petition and his amended petition. Several arguments have been expanded or changed, and new allegations of ineffective assistance have been added. When reviewing the circuit court’s ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the arguments that he made below that were considered by the circuit court in rendering its ruling. Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per curiam). An appellant in a Rule |fi37.1 proceeding is limited to the scope and nature of his arguments below, see Carter v. State, 2015 Ark. 166, 460 S.W.3d 781, and issues raised for the first time on appeal, even constitutional ones, will not be considered because the circuit court never had an opportunity to rule on them. See Detherow v. State, 2015 Ark. 447, 476 S.W.3d 155. Because well-established legal principles make large portions of Slater’s arguments unreachable on appeal, we address only the arguments made in the petition and amended petition, as well as arguments addressed at the Rule 37 hearing. Slater first alleged that trial counsel was ineffective because he failed to investigate the evidence that the State intended to use at trial, to review facts of the charges, or to pursue “cooperating witness status,” and he failed to go over trial-strategy tactics or defense theory with Slater. He also contended that trial counsel was ineffective because he should have made the jury aware that counsel had filed a motion requesting background information on the informant and that the State had failed to fully comply with Ark. R. Crim. P. 17.1 (2016) — asserting that trial counsel should have held the State to the requirements of Rule 17.1. In its order denying relief, the circuit court held that Slater’s allegations were eonclusory, because he did not “state in the petition what a more thorough investigation of the evidence should have consisted of or what it might have shown[,]” and he did not “explain in what way trial counsel was unprepared for trial.” The circuit court found that the eonclusory statements and allegations without factual basis were insufficient to overcome the presumption that counsel was effective and that the statements and allegations did not warrant granting postconviction relief. |7We hold that the circuit court’s ruling was not clearly erroneous. Slater’s allegations were eonclusory and cannot- support an allegation of ineffective assistance of counsel. Woody v. State, 2009 Ark. 413, at 5, 2009 WL 2971758. The closest Slater came to making a specific allegation of ineffective assistance was his complaint that trial counsel did not get a more specific response from the State to the Rule 17.1 motion regarding the informant’s background. However, Slater did not specify any particular information that the State did not provide or specify how the State’s failure to provide that information caused him prejudice. See Strickland, supra; see also Watson v. State, 2014 Ark. 203, at 3-4, 444 S.W.3d 835, 839. Appellant’s additional arguments cannot be reached because they were not made below. Pedraza, supra. Slater next contended in his petition that trial counsel was ineffective for failing to preserve his substantial-evidence argument for appeal because he did not make a specific directed-verdict motion as required by Ark. R. Crim. P. 33.1. The circuit court did not clearly err by finding that Slater’s allegations were eonclusory, because he failed to “state what specific elements the directed-verdict motion lacked,” and he did not “demonstrate that there would have been, merit to the motion had it' been more specific.” Appellant’s additional arguments cannot be reached because they were not made below. Pedraza, supra. Alternatively, substantial evidence supported the verdict, and there was no prejudice under Strickland, supra. Evidence supporting the two convictions included the following. There was a video- or audio tape of the drug sale from Slater to inforrhant Nick Rudd that was played for the jury, and still photos from ."the video also were introduced. While the' videotape contained an inaccurate date stamp, that discrepancy was explained by Agent Russell. Rudd testified that he.had known Slater his whole life, and Rudd was doing I ^undercover work for the police. He testified that on. October 2, 2011, he met officers outside town, contacted Slater on Slater’s cell phone, and asked to buy .sixty dollars’ worth of crack cocaine. While wearing a recording device, he picked Slater up at an . apartment complex and dropped him off at the Meadow Cliff housing project. Rudd drove around the block, and Slater came back to the car, where he exchanged crack cocaine for Rudd’s sixty dollars, which Rudd had obtained from Agent Russell. Rudd then left arid returned . to Agent Russell and the other officer working the case, Captain Dean Mannis of the Stuttgart Police Department, and delivered the drugs to them. Captain Mannis testified that he was assigned to the Tri-County Drug Task Force and that he worked with Agent Russell in investigating and prosecuting drug cases in Arkansas County, sometimes using confidential informants such as Rudd. He testified that they had "used Rudd to buy drugs from Slater on October 2, 2011. He described the process used for searching both Rudd’s car and his person prior to the drug purchase, and he verified that Rudd had been using the recording equipment and “buy money” they had given him. He described the circumstances of the drug purchase from Slater at Meadow Cliff, including Rudd’s call to Slater. Agent Russell testified regarding his experience in working narcotics investigations and stated that he had been involved with Captain Mannis in the purchase of drugs by Rudd from Slater. He also testified about how he and Captain Mannis had searched Rudd and his car, had placed the body mike and electronics on him, and had given Rudd the buy money."He noted that Rudd had set up the buy by calling Slater’s cell phone. He described in detail the actions of Rudd and Slater during the buy and noted that the buy location was less than | alOOO feet from a daycare facility. He then testified that he and Captain Mannis followed Rudd to a prearranged location, obtained the drugs and the recording device, and searched him to confirm the money was gone. He watched the video and compared it to Rudd’s debriefing to make sure they were consistent. He placed the drugs in an evidence baggie, placed the proper markings on the baggie, returned to his office, placed the baggie into an evidence envelope, sealed it with evidence tape, put clear tape over that, put his initials over the tape, and later submitted it to the state crime laboratory for analysis. The envelope containing the drugs was introduced into evidence,- along with a crime-lab report showing that the sample contained cocaine base and levamisole, a worming agent for livestock used as a cutting agent. Agent Russell testified that sellers often cut the drugs to dilute them and earn more money selling them that way.- He testified regarding the process used to make crack cocaine, and he testified that from his many classes and studies on the effects of crack cocaine, it is an addictive substance. He also testified re garding how crack cocaine is consumed or ingested and what effect it has on the user. He testified that the amount in the envelope was sixty dollars’ worth of cocaine but that the sample size would have been reduced by the testing done at the crime laboratory. When the videotape of the drug purchase was played, Agent Russell testified that it showed crack cocaine that matched what Rudd had delivered to him after the purchase. Third, Slater argued that the circuit court clearly erred by finding that trial counsel was not ineffective for failing to object to habitual-offender .evidence. As noted in the order denying relief, Slater alleged that he was never charged by information as a habitual offender and that the State did not introduce sufficient proof of the prior convictions. He contended Imthat counsel was ineffective for failing to object to the presentation of the convictions to the jury via the State’s reading the convictions into the record and the habitual-offender-sentencing jury instruction. We hold that the circuit court correctly found that the information did charge him as a habitual offender and noted that this court stated that he was charged as a habitual offender in its opinion; ¡¡¡later, supra. Accordingly, no relief was warranted, as to the allegation of ineffective assistance related to the charging instrument. Regarding Slater’s allegation that there was insufficient proof of his prior convictions and that counsel was ineffective for not preserving that issue for appeal, we hold that the circuit court correctly found that no relief was warranted. During the sentencing phase of trial, without- objection from trial counsel, the prosecuting attorney read a list of Slater’s prior convictions to the jury. Slater, supra. At the Rule 37 hearing, the State introduced a list of Slater's five prior convictions' along with certified copies of the supporting documents to prove each conviction and to establish that he had been represented by counsel- in each case. All the supporting documents were shown to have been certified on or prior to the date of Slater’s trial. His trial counsel also testified that he had reviewed the supporting documents prior to the sentencing phase of trial and that, based on his examination, there was nó basis upon which to object to the convictions being presented to the jury. ■ Dennis Molock, public defender and experienced criminal trial attorney, testified that once he is satisfied that the State can prove prior convictions, he considers it sound trial strategy to allow the State to read a list of convictions to the jury instead of having all the documentation spread out before the jury. Under these circumstances, Slater’s claim of ineffective assistance had no. merit, because trial counsel is not ineffective for failing to make |na futile argument, Adams v. State, 2013 Ark. 174, 427 S.W.3d 63; trial strategy, is not grounds for Rule 37 relief, see Rose, supra\ and Slater could not demonstrate the prejudice required by Strickland. Appellants additional arguments cannot be reached because they were not made below. Pedraza, supra., Fourth, Slater contended in his petition that counsel was ineffective for failing to object to the sentence enhancement under Ark. Code Ann. § 5-64-411 (Supp. 2011), He argued that the enhancement was illegal because it was not charged in the information. He also argued that the jury, not the court, should have imposed the enhancement. We hold that the circuit court correctly found that Slater was charged with the proximity enhancement and note that the circuit court did not specifically rule on the argument that the jury, rather than the court, should have imposed the enhancement. Because Slater did not get a ruling on that argument, it is not preserved for appeal. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626. As noted in point ten below, Slater’s Rule 37 counsel withdrew his allegation that trial counsel was ineffective for failing to object to the proximity enhancement for lack of evidence, because the trial record demonstrates that proof of proximity was presented to the jury. Appellant’s additional arguments cannot be reached because they were not made below. Pedraza, supra. Fifth, Slater argued in his petition that trial counsel was ineffective for not objecting to the introduction of the crack cocaine and the Arkansas State Crime Laboratory report because the crime-lab employee who tested the drugs did not testify at trial. He contended that the State did not prove chain of custody ‘of the drugs for that reason. In making that argument, Slater pointed out that there was a discrepancy between the weight of the drug 11gas reported by Agent Russell and as reported by the crime lab; thus, his attorney should have challenged the introduction of the drugs for lack of proper authentication and testing. He also argued that there was a discrepancy between the informant’s testimony and Agent Russell’s testimony regarding the packaging of the drugs. We hold that the circuit court correctly determined that counsel was not ineffective for failing to object to the State’s not presenting the testimony of a crime-lab employee. The circuit court noted that Slater did not explain how he was prejudiced by the lack of a crime-lab specialist’s testimony or how the testimony would have changed the result of his trial. The circuit court also noted that Mr. Mol-ock testified that as a matter of trial strategy, he would not typically demand the presence of the chemist because the composition of the substance is usually not the real issue; instead, it is the circumstances surrounding the alleged delivery. That testimony corroborated the testimony of Slater’s trial counsel that, as a matter of trial strategy, the sworn laboratory-test results would have come into evidence anyway and that addressing the issue of the delivery was more important. In fact, counsel testified that he had agreed with the prosecution to the introduction of the lab report. Because the' decision by trial counsel not to object to the introduction of the drugs and the report was trial strategy, Slater did not receive ineffective assistance of counsel. Bose, supra. We further hold that the circuit court correctly determined that the chain of custody of the drugs was sufficiently established given Agent Russell’s testimony concerning the confiscation of the drugs, delivery to the crime lab, and the package in which they were returned, as previously explained. See Guydon v, State, 344 Ark. 251, 39 S.W.3d 767 (2001). Slater did not show either the deficient performance or the prejudice required by Strickland. 11sAppeIIant’s additional arguments cannot be reached because they were not made below. Pedraza, supra. Sixth, Slater argued in his petition that his appellate counsel was ineffective for failing to adequately brief his appeal in the first instance when he filed a no-merit brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We note that this court ordered rebriefing in the direct appeal, and appellate counsel filed a brief on the merits as instructed by the court regarding one of the issues Slater raised in his pro se points on appeal. See Slater, supra. We hold that the circuit court correctly determined that Slater failed to demonstrate how he was prejudiced by the alleged inadequacies in appellate counsel’s initial no-merit brief. Strickland, supra; Watson, supra. Appellant’s additional arguments cannot be reached because they were not made below. Pedro-za, supra. Seventh, Slater contended in his petition that appellate counsel rendered ineffective assistance of counsel by failing to send him a copy of the substituted merit brief. He argued that without a copy of the brief, he was ill-equipped to represent himself. The circuit court correctly ruled that Slater did not demonstrate how this caused him prejudice under Strickland. Slater filed a Rule 37 petition and the circuit court appointed him counsel. Counsel amended the petition and conducted the hearing, which eliminated any prejudice that could have been caused by counsel’s failure to mail appellant a copy of the brief. Appellant’s additional arguments cannot be reached because they were not made below. Pedraza, supra. Slater’s eighth contention in his petition was that he was denied his right to an impartial jury under Ark. Const, art. 2, § 10 because evidence that he had a criminal history | uand had previously been incarcerated was introduced at trial during voir dire and during the examination of one of the detectives. During voir dire,’ prospective juror Ricky Bateman — in response to a question from the court to the jury panel inquiring whether anyone knew Slater — stated, “I used to work with him. And I know him from the jail when I worked there.” As noted by the circuit court in denying relief, Bateman did not say that Slater was an inmate at the jail, and he added that he did not know of any reason that the past acquaintance would prevent him from being a fair and impartial juror. Bateman was selected to serve on the jury. Moreover, trial counsel testified at the Rule. 37 hearing that Slater wanted Bateman seated on the jury because he thought he would be fair. Slater argues on appeal that Slater’s proffered exhibit 5 shows that Bateman’s statement was prejudicial. We disagree and hold that, if anything, the proffered evidence showed that Bateman’s presence on the jury helped Slater, just as Slater told his attorney he thought it would. Bateman cautioned the other jurors not to assume guilt on the September 26, 2011 charges simply because they were finding Slater guilty of the October 2, 2011 charges, and he also cautioned them that his knowledge of Slater had no bearing on the current charges. Accordingly, Slater is unable to prove prejudice resulting from juror Bateman being part of the jury based on the proffered statement, even if the statement had been deemed admissible by the circuit court. James' Triplett, another prospective juror, responded to the question as to whether anyone knew Slater'by saying, “Yeah, I was a juror in a trial with Mr. Slater before ... (inaudible).” We note that Triplett did not disclose that Slater was the defendant in the trial, and we hold that the circuit court correctly noted that the comment could have been | ^interpreted as Slater’s having been a member of the jury. Triplett was excused immediately without further discussion. Finally, when Agent Russell was asked on cross-examination how he had acquired a picture of Slater for identification purposes, he said that he did an ACIC search, looked up his criminal history, and obtained his picture from that. In its order denying relief, the circuit court determined that, while the statements made by Bate-man and Triplett might have left the impression that Slater had been in trouble with the law before, they were general in nature and could have been interpreted otherwise. Moreover, the circuit court noted that trial counsel testified that as a matter of trial strategy, he did not move for a mistrial in those instances because it would have drawn more attention to the comments. We reiterate that trial' strategy does not support a' claim of ineffective assistance of- counsel. Rose, supra. The circuit court found that Slater failed to establish that he was prejudiced by the comments, and the fact that the jury acquitted Slater of two of the charged counts is counter to his claim that he was prejudiced. Because Slater failed to show either the -deficient performance or the .prejudice required by Strickland, we hold that the circuit court did not clearly err by denying his request for relief. His additional-arguments cannot be reached because .they were not made below. Pedraza, supra. Ninth, Slater argued' in' his amended petition that his trial counsel was ineffective.for.failing to object to the testimony of Agent Russell through which the crime-lab report was introduced. Slater claimed that Agent Russell was not the proper person to authenticate the Report and that Agent Russell.“essentially’testified as an expert witness [without having been [ ir,qualified as one] regarding the chemical make-up and effects of the drugs[.]” He ásserted that he was prejudiced and, as a result, denied a fair trial. The circuit court found that .it had ad: dressed the admission of the lab results previously in Slater’s' fifth contention and found that Agent'Russell’s testimony was based on his education" and experience in drug cases, making his testimony admissible. See Redman v. St. Louis Sw. Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994) (noting that Arkansas appellate courts 'have consistently allowed law enforcement officers to testify based on their education and experience). Accordingly, we hold that there was no ineffective assistance of counsel under Strickland. Appellant’s addition: al arguments cannot be reached because they were not. made below. Pedraza, supra. Finally, in the amended petition, Slater contended that no evidence was presented at trial to show that the crime occurred within 1000 feet of a daycare. See Ark. Code Ann. § 5-64-411(a)(2)(g) (Supp. 2016) (providing for ten-year sentence enhancement where offense is committed within 1000 feet of the real property of a daycare center). As noted by the circuit court in. its order, Slater’s Rule 37 counsel withdrew this claim because such evidence was presented at trial. Indeed, Agent Russell testified that the crime occurred at the Meadow Cliff housing project across the street from, and within 1000 feet of, a day care center, and that testimony was substantial evidence to support the jury’s finding regarding the enhancement.-Appellant’s remaining arguments presented on appeal were not made before the circuit court and therefore cannot- be reached. Pedraza, supra. Alternatively, Slater’s argument that he could not receive both the proximity enhancement and the habitual-offender sentence fails. In Moore v. State, 2012 Ark. App. 17662, 2012 WL 5907838, and Hadley v. State, 2010 Ark. App. 515, 2010 WL 2522190, we held that the felon-in-posses- ' sion statute is not an enhancement statute, but rather a separate crime,-and that one can be both convicted of being a felon in possession of a firearm and receive habitual-offender. sentencing. Committing the crime in proximity to a day care is an independent offense, not an enhancement, due to the commission of prior offenses of the, same type. Hadley, supra. Thus, it was proper for the circuit court to impose both a habitual-offender sentence and the proximity enhancement. Affirmed in part and remanded'in part. Harrison and Klappenbach, JJ., agree. . Count 1 (delivery) and Count 3 (use of a communication device) were connected, as were Count 2 (delivery) and Count 4 (use of a communication device). . Slater initially filed the petition pro se, but Ms. Laura L. Calhoun was later appointed to represent him, and she filed the amended petition on his behalf on August 25, 2015. She later filed a motion to be relieved as counsel on November 4, 2015, and that motion was granted by the circuit court on November 9, 2015. Slater is once again proceeding pro se.

MOTION FOR RULE ON CLERK PER CURIAM. Appellant Shelton Wormley, by and through his attorney, Donald E. Warren, Sr., has filed a motion for rule on clerk. Mr. Warren represented the appellant in the trial court and filed a notice of appeal on his behalf on June 12, 2008. The record in this matter was untimely, as it was tendered on November 18, 2008. This court denied an earlier motion for rule on clerk filed by John L. Kearney. Mr. Kearney was appointed counsel for the appellant by the trial court after the notice of appeal was filed. We found that the trial court lacked jurisdiction to relieve Mr. Warren and substitute Mr. Kearney as counsel for appellant. Wormley v. State, 375 Ark. 247, 289 S.W.3d 463 (2008) (per curiam). Under Arkansas Rule of Appellate Procedure — Criminal 16(a), once the notice of appeal has been filed, the appellate court has exclusive jurisdiction to relieve counsel and appoint new counsel. Id. Consequently, this court would not consider the motion for rule on clerk filed by Mr. Kearney. Id. Because Mr. Warren was not relieved as counsel of record, we directed that he file a motion for rule on clerk. Id. This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said: Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present. 356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id. Although Mr. Warren does not expressly acknowledge that the record was tendered untimely due to an error on his part, it is plain from the record that he erred. Pursuant to McDonald v. State, supra, we grant Wormley’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct. Motion granted.

JOHNSON, J. —This is a bill of review, filed by Samuel C. Roane, attorney of the United States for the territory of Arkansas, for and on behalf of the United States, to revise, reverse, and annul a former decree of this court, pronounced and recorded at the December term, 1827, in favor of Bernardo Samperyae, for four hundred arpens of land. The substantial allegations in the bill of review are, that the decree is erroneous, and was obtained by fraud and surprise; that the original petition, or requite and order of survey exhibited in this case, are forged and corrupt; and that the order of survey was never signed by Miro, governor of Louisiana, as the same purports to have been; and that this fact has come to the knowledge of the said district attorney since said decree was entered of record; that Bernardo Samperyae is a fictitious person, and never had an actual existence; that if he ever did exist, he was dead at the time of exhibiting his bill; that John Hebrard, upon whose testimony the decree was made, committed the crime of perjury in giving his testimony; and that the statements sworn to by him upon the hearing of this cause, as set forth in his deposition, are false and corrupt; that the original petition and order of survey in this case, shows upon its face, that it was not made as early as the year 17S0, but appears to have been made long since, and that the former decree of this court was obtained by fraud, covin, and misrepresentation, in violation of the principles of equity and of law. The district attorney, for and on behalf of the United States, avers and says, that since the decree was made in this case, he has discovered new and important record evidence, which was not within his control, and the existence of which he did not know, and had not time to procure at the hearing of this cause; all which he believes he will be able to procure and exhibit upon the final hearing. The first question made and argued at the bar, which will be considered, relates to the power conferred on this court by the act of congress of the 26th May, 1824, entitled “An act enabling the claimants to land within the limits of the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims.” It is contended by the counsel for the defendants that the act of 1824 constituted a special tribunal, with limited and restricted powers; that full chancery powers were not conferred; that this court possessed no greater powers than have been heretofore delegated to boards of commissioners, created by acts of congress, to decide upon claims similar to those now pending in this court; that this court cannot entertain a bill of review, because the authority to do so is not given by the act of 1824. That this court, sitting as a court for the adjudication of French and Spanish claims, possesses no power not delegated and conferred by the several acts of congress upon that subject, we are ready to admit. To ascertain the extent of the power and jurisdiction of this court, let us examine the act of 1824. That act provides, that it shall be lawful for certain claimants to present a petition to the district court of the state of Missouri, setting forth their claims as pointed out in the act; praying in said petition, that the validity of such title or claim may be inquired into and decreed by said court; and the said court is authorized and required to hold and exercise jurisdiction of any petition presented in conformity with the provisions of the act, and to hear and determine the same on the petition, in case no answer be filed, after due notice or on the •petition and answer of any person interested; and the answer of the district attorney of the United States, where he may have filed an answer, according to the evidence which may be adduced by the parties, in conformity with the principles of justice, and according to the laws and ordinances of the government under which the claim originated; a copy of the petition to be served on any adverse claimant, and on the district attorney o'f the United States when the government is interested in the defence. The act further provides, that any petition which shall be presented, shall be conducted according to the rules of a court of equity, except that the answer of the district attorney of the United States shall not be required to be verified by his oath, and tried without any continuance,unless for cause shown; and said court shall have full power and authority to hear and determine all questions arising in said cause, relative to the title of the, claimants, and, by a final decree, to settle and determine the validity thereof, according to the laws of nations, and all other questions properly arising between the claimants and the United States; and the court may. at its discretion, order disputed facts to be found by a jury according to the prac tice of said court, when directing issues in •chancery before the same court; and in all cases, an appeal to the supreme court of the United States is allowed, within one year from the rendition of the judgment or decree. the decision of which court shall be final and conclusive between the parties; ^.nd should no appeal be taken, the judgment or decree of the said district court «hall, in like manner, be final and conclusive. By the 14th section of the act of 1824, it is enacted, “that all the provisions of that act •«hall extend to and be applicable to the territory of Arkansas, and for the purpose of finally settling and adjusting the title and claims to land derived from the French and Spanish governments, the superior court for the territory of Arkansas, shall have, hold, and exercise jurisdiction in all cases, in the same manner, and under the same restrictions and regulations, in all respects, as by this act is given to the district court for the «tute of Missouri.” The question arises under the foregoing act, whether this court has been clothed with full and complete chancery jurisdiction and power; in adjudicating upon these claims; -or whether it has been invested with a limited and restricted authority, capable of performing nothing which is not expressly delegated by the act, resembling rather a board ■of commissioners than a court of equity? Upon the best reflection which we have been able to bestow upon the subject, we entertain little doubt that the act of 1824 intended to confer, and does confer, upon this -court, the full and ample power of a court of chancery. Instead of creating a special tribunal, a board of commissioners to decide and report upon claims like these, congress has referred them to the decision of a court, possessed of common law and chancery jurisdiction; a court invested with a part of •the judicial power of the United States. The cases, when brought before this court, are to be conducted according to the rules of a court of equity. This court, then, possessing both chancery powers and common law jurisdiction, is required to try these cases on the chancery side of the court. The fact that the cognizance of these claims is given to a court possessed of full and ample equity jurisdiction, with the injunction to try the cases according to the rules of a court of equity, goes far to prove that congress intended to refer them to the judiciary, and allow the United States to be sued before her own courts, that a final termination might be put to these demands upon her justice. The provision for an appeal from the decision of this court to the supreme court of the United States, by either party, strongly evinces the intention of congress that these claims should receive their adjudication by the judiciary of the United States. If, then, congress intended to refer them to the judiciary, can it be reasonably inferred that they intended to limit the general powers of the court to which the reference Is made? We think not. The act, in terms, does not limit the jurisdiction of this court; and we are not to infer a limitation unless it be expressed, or arises from a necessary implication. If we are correct in affirming the proposition that the act of 1824 authorizing certain claimants to bring suit against the United States, on the equity side, possessed of full chancery power and jurisdiction, it follows, that a bill of review will lie in this court, unless there be something in the act itself forbidding it. It has been urged that that part of the act which says that the judgment or decree of this court, unless appealed from in one year, shall be final and conclusive, necessarily precludes the idea of a bill of review. We entertain a different opinion. The provision just referred to, relates to the time in which an appeal may be taken. It says nothing about a bill of review, or rehearing. Each of these modes of revising the decrees of this court, according to the practice in chancery, is left untouched, and stands precisely as they existed had no time been limited for an appeal. The court entertains a bill of review, in virtue of the chancery jurisdiction conferred by the act of congress by which it was created, and possessing that power previous to the act of 1824, continued to possess it, with the authority to apply it to these cases, for the adjudication of which the latter act was passed. It is, however, further contended by the counsel for the defendants, that, as the bill of review in this case was filed upwards of two years subsequent to the final decree in the original cause, and more than one year after the time allowed for an appeal had elapsed, this remedy is barred by length of time. In the case of Thomas v. Harvie, 10 Wheat. [23 U. S.] 146, the supreme court of the United States held that a bill of review, for error apparent in the decree, is barred by length of time, unless it is filed before the time limited for an appeal; but, in the same case, the court expressly reserved the question, whether a bill of review, founded upon matter discovered since the decree, is in like manner barred by the lapse of the time limited for the appeal. That question is directly presented in this case, and calls for our decision. We have bestowed upon it all the reflection of which we are capable; and the conclusion to which we have arrived is, that a bill of review, founded on the discovery of new matter after the decree, ought not to be barred by the lapse of one year, the time limited in these cases; nor do we think it ought to be barred by the lapse of two years and four months, the time between the former decree and the filing of this bill. The reasons assigned by the supreme court, in the case cited, for applying as a bar to bills of review for error apparent on the face of the decree, the time limited for an appeal, do not, in our judgment, apply to the case of a bill of re view, founded on new matter, discovered subsequent to the decree. Judge Washington, in delivering the opinion of the court, says, “that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands, its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts;” and the decision was, that, although bills of review are not strictly within the statute of limitations, yet courts of equity will adopt the analogy of the statute in prescribing the time within which they shall be brought. In the case of a bill of review for new matter recently discovered, no laches or neglect can, we think, be properly imputed to the party filing the bill. It is allowed only on.the ground of his ignorance of the existence of the new matter before the former decree; and it is incumbent on him to file his bill in a reasonable time after the discovery is made; all this is alleged in the present bill. The bill could not be filed within one year after the decree, because the new matter had not then come to light, but was subsequently discovered. If, then, laches or neglect are not imputable, has so great a time intervened that it may justly be denominated a stale demand? Two years and four months can scarcely be considered in that light. It would not bar an action of assumpsit upon a parol contract, and cannot be considered an unreasonable delay in bringing a bill of review. In England, twenty years is allowed; and in the case decided in 10 Wheat. [23 U. S.] 146, before cited, five years was allowed. We do not think that, to a bill of review for new matter, no lapse of time ought to bar the remedy. Upon the principle of repose, we think the lapse of a reasonable time ought to present a bar; what that reasonable time should be considered, and it is well settled to be in the second discretion of the chancellor, it is unnecessary for us to decide, since we are clearly of opinion that two years and four months is not an unreasonable time for filing a bill of review. Whether the principle settled by the supreme court of the United States, in several cases, that laches are not imputable to the government, ought to apply in this case, we need not decide. The second inquiry which arises in this case, and which has been ably argued at .the bar, is, whether a ease is made out for a bill of review according to the established principles of equity. The material allegations in the bill have already been stated, by which it appears that the main and principal ground relied upon for a review, is the discovery of new matter since the making the former decree. The only allegation we deem material to notice is, that the original petition, or requite and order of survey on which the decree was based, is forged and corrupt, and was never signed by Miro, governor of Louisiana; and that this fact has come to the knowledge of the district attorney of the United States since the rendition of the decree, asked to be reviewed; and that he has, since the said decree, discovered new and important record evidence, which was .not within his control, the existence of which he did not know, and had not time to-procure, at the hearing of the cause. The objections urged by the counsel for the defendants are, that this is a matter which, was put in issue by the pleadings in this case before the former decree was pronounced and recorded; and having been once put in issue, a- bill of review will not lie for the discovery of evidence relating to the matter put in issue previous to the decree; that a bill of review will lie only for error apparent in the decree, or for new matter subsequently discovered, which was not in issue between the parties-Let us examine this position. The ordinances-of Lord Chancellor Bacon respecting bills of review, are generally referred to as good authority, and have never been departed from. 3 Atk. 26. The doctrine is there asserted that no bill of review shall be admitted except it contain either error in law, appearing, in the body of the decree, or some new matter which has arisen after the decree, and not any new proof that has come to light after the decree was made; nevertheless, upon new proof that has come to light after the .decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be granted. According to the doctrine of the above ordinance, the present bill makes out a good case for a bill of review. New proof, important and material, none could be more so, is alleged to have come to light since the making and recording of the former decree, which could not possibly have been used at the hearing, because it was not known by the district attorney to have existence. This new proof is, that the title papers of the defendant are fraudulent and forged. But this fact is said to have been before put in issue. Admit it, for the sake of .argument. What is the doctrine asserted by Chancellor Eldon in the case of Young v. Keighly, 16 Ves. 348. The ground of a bill of review, the chancellor says, is error apparent on the face of the decree, or of new evidence of a 'fact material pressing upon the decree, and discovered after publication in the cause. Again, he says: “As far as I can ascertain what the court permits-with regard to bills of review upon facts newly discovered, the decisions appear to be on new evidence, which, if produced in time, would have supported the original case, and are not applicable where the original cause does not admit of the introduction of the evidence; as not being put in issue originally.” The doctrine is to be found in Coop. PL 9L The author asserts “that it must be on new matter to prove what was before in issue, for a party cannot be entitled to a bill of review on new matter to prove a title which was not in issue.” Por this position he cites Cary, 82;. Amb. 293. If these authorities are to be relied upon, they prove conclusively, that in the- present bill, a good cause is made ont for a review. We are ready to admit, that in the two eases decided by the court of appeals of Kentucky, reported in Hardin’s Reports, 342 and 454, a different doctrine seems to be established. But the rule as laid down by Chancellor Eldon, accords better with our views of what the rule ought to be, and accordingly we adopt it as intrinsically correct But admitting that the :new matter must relate to something not before put in issue by the parties, still we think a case is made out for a bill of review. It is certainly true that the district attorney, in his answer, denied all the allegations in the petition, and required .'the petitioner to produce proof of them; but, at the same time that he denied them, he stated that he was wholly uninformed as to their truth. It is like the answer of a guardian, denying the allegations of a bill on the ground of ignorance, whether they are true or false; and such answer has been held insufficient to dissolve an injunction. Apthorpe v. Comstock, 1 Hop. Ch. 143; Roberts v. Anderson, 2 Johns. Ch. 202. By this general denial of the title of the petitioner, no special fact in relation to that title was put in issue. The district attorney made no allegation that the title papers of the petitioner were fraudulent or forged. He could not make such an averment at the time he filed his answer, because he was wholly uninformed as to the authenticity of those papers, and, on that ground, required that they might be proved. There was no controversy as to the fact whether those papers were genuine or forged; no conflicting testimony was introduced, and all the proof adduced before the court was by the petitioner. This surely cannot be such a putting in issue of the fact of forgery or not, as to preclude a reexamination of that matter, when subsequently discovered. We suppose the judges of the court of appeals of Kentucky mean to say, that after certain material matters of fact have been put in issue, and evidence adduced by each party to that issue, and a decree rendered, a bill of review will not lie merely upon the discovery of additional testimony to the same point, unless that evidence consists of records, in which event they admit that a bill of review will lie. According, then, to the principles settled in Kentucky, a case is made out for a bill of review; for the present bill contains the allegations that important record evidence has been discovered conducing to prove that the title papers of the petitioner are false, fraudulent, and forged. The court of appeals of Kentucky, in the case of Respass v. Mc-Clanahan, Hardin, 346, say: “There is an important difference between the discovery of a matter of fact itself, which, though it existed at the former hearing, was not then known by the party to exist, or which was not alleged or put in issue by either party, and the discovery of new witnesses or proof of a matter or fact which was then known or in issue. In the former cause, the party not knowing' the fact, and it not being particularly in issue, there was nothing to put him on the search, either of the fact or the evidence of the fact, and therefore the presumption is in his favor, that, as the matter made for hitn, his failure to show the matter was not ■owing to his negligence or fault. They further say, after the most careful search, they cannot find one case reported in which a bill of review has been allowed on the discovery of new witnesses to prove a fact which had been before in issue, although there are many where bills of review have been sustained on the discovery of records or other writings relating to the title which was generally put in issue.” It cannot be affirmed that the forgery of the title papers of the petition was particularly pint in issue by the former pleadings. The title only was generally put in issue, and, according to the authority just quoted, as record evidence in relation to that title is alleged to have been discovered, a clear case is made out for a bill of review.. If, then, this court possesses the jurisdiction to entertain a bill of review in the case now before the court, and a case .is made out by the bill, according to the principles of equity, .the next inquiry is, does the evidence adduced call upon the court to pronounce a decree of reversal? What is the evidence? First, the defendant, Samperyac, the original petitioner in whose favor the former decree was rendered, has failed to answer this bill, and, under a rule of this court, an order of publication was duly published in the Arkansas Gazette; and at the October term, 1830, of this court, the bill was taken for confessed as to the said defendant. The inquiry arises as to the effect of taking the bill for confessed. The doctrine is well settled, that when the allegations of a bill are distinct and positive, and the bill is taken for confessed, such allegations are taken as true without proof. That a decree pro confesso is like a judgment by nil dicit at common law. Williams v. Corwin, 1 Hopk. Ch. 471; 3 Atk. 468. In the case of Hawkins v. Crook, 2 P. Wms. 556, the bill alleged a decree to have been obtained by fraud. The decree assumes that the order to take a bill pro confesso admitted the facts charged as fraudulent, and the court plainly took them to amount to fraud, and without further proof, decreed the appropriate relief. The authorities clearly establish this principle, that if the allegations are of a nature so distinct and positive, that, taking them to be true, the court can make a decree upon them, it will, upon the order pro confesso, decree without proof. Where they are in their nature so defective or vague that a precise decree cannot be made upon them, proof must be adduced from the necessity of the case. No rule can be better founded in reason and propriety. A refusal to deny where the party is legally bound to speak, is equal to an admission of the charges made against him. What is admitted, need not be proved. The allegations are incontrovertibly established, when confessed by him against whom they are made. This is the doctrine applicable to original bills; and we have, in our researches, been able to find no case where the doctrine has been applied to bills of review. Perhaps it may be because no such case exists, and that this is the first where a bill of review has ever been taken pro eonfesso. But the principle applies with equal force and propriety to the latter ■ as to the former. The allegations of this bill are, that the title papers are forged and spurious, and that the witness who proved them committed perjury. These allegations, when admitted, destroy the evidence upon which the former decree was based, are distinct and positive in their nature, and justify a decree without additional proof. But admitting that the doctrine applicable to original bills, in relation to the effect of taking a bill pro con-fesso, ought not to be applicable to bills of review, still we are of opinion that the evidence adduced in this case is full and conclusive to prove that the title papers upon which the former decree was based are forged, fraudulent, and spurious. Let us advert to the evidence: Hilary B. Cenas, register of the land-office at New Orleans, states, in his deposition, that he has instituted a careful search among the Spanish records under his charge, particularly in a book entitled “Register de los Primeros De-cretos de Concesión”; in which book it was customary to enter any order of survey, as it was first made, from the year 1786 up to 1799, inclusive, and could not find any order of survey of lands in favor of, or granted to, Celes-tine Armón in the district of Arkansas. He further says that he has examined the form of orders of survey, as sworn to by Judge Tessier and Jean Mercier, the register of mortgages in New Orleans, and found it to correspond with the orders of survey of record in his office; that he has compared the signatures affixed to orders of survey, upon which Messrs. Tessier and Mercier have given their depositions in the cases of the United States against the persons named in said depositions, and that he verily believes that they are false and counterfeit. By consent of parties, this deposition was read in this case, to prove the same facts in relation to the order of survey in favor of Samperyac. Isaac T. Preston, late register of the land-office at New Orleans, asserts that he has examined the papers annexed to the depositions of Jean Mercier and Charles Tessier, in the cases in which they have given their depositions before the Honorable Gillen Preval, purporting to be Spanish orders of survey. The signatures are not in the handwriting of Governor Miro or Gayoso, as they purport to be. Deponent is well acquainted with the signatures of those governors, having seen their genuine signatures to many different records. Deponent further says, that said papers are not in the form in which Spanish orders of survey were given, but that thg form' annexed to the depositions of Mr. Tessier and Mr. Mercier, were adopted in all orders of survey, except when the nature of the place to be surveyed required a different form. He further states, that he has seen the deposition of Hilary B. Cenas, register of the land-office at New Orleans; and that deponent, when register of the same office, made a similar search with the same result Charles Tes--sier deposes that he was a clerk in the office of the late Spanish government, from the commencement of the year 1790 to the end of the year 1802; that he was acquainted with the handwriting of Governors Miros and Manuel Gayoso De Lemos, from seeing them write frequently; and says, positively, that the signature of Miro presented to him, and appended to the order of survey in this case, and which has been signed by me, nevariator is not in the handwriting of said Governor Miro; that the decree or order of survey is not in the form used and prescribed in such case, nor is it recorded, as was the usual practice, in .granting lands by the governor; that the practice was to insert at the foot of the said order, the word “Reg’d,” with the flourish of the recording clerk; further, that the spelling of the said decree is not according to the rules of Spanish orthography, and that the clerks, whose duty it was to write such orders, were all good Spánish scholars, and would not have been permitted to use such spelling In any official business; that the handwriting of the aforesaid order of survey Is not that of any of the clerks that were, at that time, employed in that department of the government, the deponent being well acquainted with the handwriting of all the clerks who wrote in the office during the time he was in the employ of the government, and he is also acquainted with the handwriting of those that preceded him for many years. This witness further states, that he has no recollection of John B. Hebrard, Harea Devere, and Lemuel Masters, and is positive that these men were not familiar in the office of the Spanish government, and never known or seen in that office; that he does not know the handwriting of the order of survey in this case; that it is not in the handwriting of any of the clerks that ever were employed in the office of the Spanish government then existing. Jean Mercier, a clerk in the office of the late Spanish government in Louisiana, from 1792 to 1801, deposes to the same facts, in all respects, testified to by Charles Tessier, and which it is unnecessary to repeat. Antoine Cruzat,' Sen., deposeth, that he was employed as an officer of the' regiment of Louisiana, in the office of Governor Manuel Gayoso De Lemos, all the time he was governor of Louisiana under the Spanish government. That he had frequent opportunities to see and examine the signature of Governor Miro, and to see him also sign his name. He further says that he is well acquainted with the handwriting and signature of all the clerks of the office of the said governors; and that he had no hesitation in saying, that the signatures of Miro and Gayoso, appended to the orders of survey in which Charles Tessier and Jean Mercier have given their depositions before Judge Preval, pursuant to several commissions from the superior court of the territory of Arkansas, are not genuine, as- well as the handwriting of the orders of survey. That the spelling of said orders of survey is incorrect, and that no clerk would have been permitted to use it; that the form of the orders of survey, as given by Mr. Mercier and Mr. Tessier, is the only true and correct one; that he has never known any men by the name of John B. Hebrard, David Devere, and Lemuel Masters; and that he is confident they have never been seen in the office of Governors Miro and Manuel Gayoso De Lemos, at New Orleans. The deposition of Martin Durald, late register of mortgages in New Orleans, taken in a similar case to the one now before the court, in which the United States is plaintiff, and Martin Durald defendant, has been read as evidence in this case, by consent of parties. He deposes that he was born in Louisiana, and has never had any grant nor any order of survey for any land in the territory of Arkansas; that his father was of the same name with himself, and that, to the best of his knowledge, his father has never had any land in the territory of Arkansas; that he is well acquainted with all the names of the French and Spanish inhabitants of Louisiana, as having kept a public office in New Orleans; and that he knows no person, except his father and himself, of the name of Martin Durald; that he had a brother by the name of Joseph Y. Durald, and that, to the best of his knowledge, his said brother never had any land in the territory of Arkansas. From the testimony, it is manifest that the order of survey in this case is not to be found recorded in the record book at New Orleans, in which it was usual .and customary to record any order of survey made from 17S6 to 1799. The same fact is also proved in relation to every case amounting to upwards of one hundred, now pending before this court, upon bills of review. Tessier, Mercier, Preston, and Cenas, all depose to this fact; Tessier, Mercier, Cruzat, all of them well acquainted with the handwriting of Governor' Miro, and having frequently seen him write, swear that the name of Miro, signed to the order of survey in this ease, is not in his handwriting, and therefore not genuine. Cenas, the present register, and Preston, the late register of the land-office at New Orleans, both swear that they have seen many genuine signatures of Governor Miro; and from the comparison with the present order of survey, the signature is not in the handwriting of Governor Miro. Tes-sier, Mercier, and Cruzat, depose that they are well acquainted with the handwriting of all the clerks who wrote in the Spanish governor’s office, at New Orleans, and that the order of survey in this ease, is not in. the handwriting of any clerk who ever wrote in the said office, and that the form of the order of survey in this ease, is not in the form used by the Spanish government; Cenas and Preston also swear to this latter fact; Tes-sier and Mercier swear that Hebrard was never seen in the governor’s office, at New Orleans. The fact that, the name of Samperyac, the original petitioner and defendant to this bill, is signed in a good handwriting to the petition to the governor for a grant, and that his mark is used in the deed of transfer to John J. Bowie, is also in proof. It is further in proof, that the defendant, Samperyac, has never made his personal appearance in this court, nor has one of the original claimants, amounting to one hundred and seventeen, ever appeared here, except by John J. 'Bowie, their agent, and the counsel employed by him; and the counsel admit that they have never seen one of the original claimants in whose favor the former decrees of this court were made. The evidence upon which the former decree was made, is the deposition of John B. Hebrard. In deciding upon this testimony, we think there is no rational ground to doubt, we are entirely satisfied, and believe it to be abundantly manifest, that the order of survey, upon which the former decree was made, is fraudulent, forged, and counterfeit; and that Samperyac himself is an ideal, fictitious being, and never had an existence except in name. The fact, that Samperyac, nor any of the other claimants have ever appeared here, or been seen by their counsel employed for them; that no one of them has filed an answer in these bills of review; that their title papers upon which the former decrees of this court rested, are not to be found of record where such papers were generally and usually recorded; that their title papers are not in the form used at the time, by the Spanish government, in making concessions of land; that they are misspelt, and above all, that they have been proven by the testimony of three or four witnesses, who stand above suspicion, having the best opportunity of being well informed, to be counterfeit, forged, and spurious, speak a language not to be misunderstood, and calculated to produce the strongest conviction, that the order of survey, on which the former decree is based, is a forged and spurious paper, and, consequently, that the former decree of this court ought to be reversed, unless there is some other circumstance in the ease to prevent it. There is, however, another defendant in this case, besides the original petitioner. Joseph Stewart, at a former term, appeared, and, on his motion, was admitted a defendant to this bill of review, and has filed his answer. In it he alleges that he is an innocent purchaser, without notice, for a valuable consideration, of the land decreed by a former decree of tbis court; that he purchased from John J. Bowie, who, he alleges, purchased from Samperyae, the original petitioner, and exhibited the deeds of transfer or assignment. He denies all the allegations in this bill, of fraud, forgery, and perjury, but admits his entire ignorance of these matters, and prays that his interest may be protected by this court. The question arises, what effect is this answer entitled to have in the decision of this cause? The defendant Stewart, in our judgment, does not occupy the attitude of an innocent purchaser without notice, so as to stand on any higher ground than the defendant Samperyae himself. The interest which he has purchased in the land decreed by this court, is an equitable and not a legal right. It is well settled, that a judgment or decree is not assignable at law, so as to vest a legal title in the assignee. The act of congress of 1824 does not authorize the assignment or transfer of the decree of this court; and, under that act, the land decreed to the claimant could be entered or located only in his name, or in the name of his legal representatives, in case of his death, and the patent could issue only to the claimant or his legal representatives, not to his assignees. Stewart, then, can only be considered as the purchaser of an equity; and it is an established principle, that a purchaser for a valuable consideration without notice, in order to protect himself, must be clothed with the legal title, and not a mere equity. 2 Brown, Ch. 66; 2 Madd. 258; 1 Atk. 571; 3 Atk. 377. The defendant Stewart, having only an equitable title under the former decree of this court, takes it subject to all equity which attached to it in the hands of his assignor. It cannot be asserted that Stewart is a purchaser under the former decree of this court This can be true only when there has been a judicial sale, in which case the purchaser is protected, though the judgment or decree is erroneous. Upon this ground, alone, we think it is obvious that the defendant Stewart stands on no other or different ground than the original petitioner, in whose favor the former decree was made. 2d. If, however, we are mistaken in this position, still we think the defendant Stewart is not entitled to be protected as an innocent purchaser without notice, on the ground that the transfer from Samperyae to John J. Bowie is a forgery. The evidence establishing this fact will be briefly detailed. The transfer or deed from Samperyae to John J. Bowie, of the land decreed by the former decree of this court, now claimed by Stewart, bears date on the 14th day of February, 1828, and is attested by Henry Hobbs and John Cook, and proved by the said Cook before John ■Williams, as justice of the peace in Clark county in this territory. By consent of parties, about sixty-six deeds of transfer from the original claimants, in whose favor this court have made decrees, all of which are now pending in this court upon bills of review, and are similarly situated with the case now under consideration, have been filed as evidence in this cause. Twenty-four of those transfers, from the original claimants, are made to John J. Bowie, attested by John Cook and another name. The first of these transfers bears date on the 29th day of December, 1S27, in a few days after the decree was entered of record. The second bears date on the 18th January, 1829; the third on the 19th; the fourth on the 21st; the fifth on the 24th of the same month and year. The sixth bears date on the fourth February, 182S; the seventh on the 6th; the eighth on the 8th; the ninth and tenth on the 9th; the eleventh on the 10th; the twelfth and thirteenth on the 11th; the fourteenth on the 12th; the fifteenth on the 13th; the sixteenth on the 20th; the seventeenth, eighteenth, and nineteenth on the 21st; the twentieth on the 22d; the twenty-first on the 23d; the twenty-second on the 28th; the twenty-third and twenty-fourth on the 29th February, 1828. These twenty-four transfers, one of which is the transfer in this case, purport to have been executed by the original claimants, in whose favor the decrees of this court were made to John J. Bowie, are all attested by John Cook and another, and certified by John Williams, a justice of the peace in this territory, to have been proved before him by John Cook, the subscribing witness. How does it happen that this witness, John Cook, should have been present to witness the execution of twenty-four deeds from different persons to John J. Bowie, and most of them on different days? Could it have been necessary that Bowie should have employed this Mr. Cook to travel round with him to become a witness to their execution? Could Bowie have procured witnesses residing near these claimants to attest their deeds or transfer to himself? How does it happen Bowie is so fortunate as to find these original claimants so soon after the decree of the court was made? One of them he found in a few days after the decree, in a shorter time than would be required to travel beyond the limits of the territory. Having been fortunate in the commencement, his good fortune never seems to desert him until he obtains all the transfers. On the 4th February he finds one of them; one of them on the 6th; he is equally fortunate on the 8th; on the 9th he finds two, and on the 11th his efforts are still crowned with greater success, he finds three; on the 23d of the same month he finds three others; and by the 29th February, he discovers all of them. Thus it would seem that these original claimants, not one of whom can now be found to answer these bills of review, these men whom the counsel employed by John J. Bowie to advocate their rights, never saw; not one of whom are proven to be liv ing, or that they ever did exist. These are the men whom John J. Bowie finds residing so near each other, that he could obtain the ■deeds of three of them in one day, and find all of them in little more than one month after the decrees. If, however, we could believe all this, is it not passing strange that Mr. Cook, whom nobody knows, should have happened to be present at all these various times and places ready to'attest these transfers from the original claimants to John J. Bowie? Unless we indulge the presumption, that Bowie employed this Mr.. Cook to go along with him to attest these deeds, for which we can see no reasonable motive, we are unable to account for' his presence whenever wanted or called for by Bowie. Bowie must have had a talisman, possessed of the magical power of Aladdin’s lamp, by which lie calls up, at his bidding, this omnipresent witness. We have no doubt that this witness, like the genius in the Arabian tales, having performed the office for which he was invoked, has vanished into air, and disappeared for ever. In addition to these twenty-four deeds of transfer, thirty other deeds of transfer or assignment from the original claimants to John J. Bowie and other persons, are by consent exhibited as evidence in this cause; all these deeds are attested by Lemuel Masters and other. names, and certified by J. Williams, a notary-public in Louisiana, to have been proved before him by Lemuel Masters on the 29 th day of February, 1828. The two first bear date on' the 10th January, 1828; the third and fourth bear date on the 20th; the fifth and sixth on the 21st; the seventh on the 24th; the eighth on the 25th; the ninth and tenth on the 20 th; the eleventh on the 27th; the twelfth on the 28th; the thir.teenth and fourteenth on the 29th January, 1828; the fifteenth and sixteenth bear date on the 2d day of February, 1828; the seventeenth on the 9th; four more on the 10th; one on the 11th; one on the 13th; one on the 21st; two on the 22d; one on the 2oth; one on the 26th; one on the 27 th, and the remaining three on the 28 th February, 1828. Lemuel Masters, the witness who proves these deeds, is not an ideal being, but is one of the three witnesses who proves the original claims, and on whose evidence the former decrees of this court were made. This circumstance adds nothing to his credit. Why should one of these witnesses to the original claims, brought here by John J. Bowie, which fact is known to this court, he being the only person who appeared here as agent of the claimants, have been selected to travel round and attest the deeds of transfer from these claimants? All the remarks made in relation to the twenty-four transfers apply with equal force to the thirty - just named. Can it be believed that Lemuel Masters could find eighteen of these original claimants in one month, and four of them in one day? If they resided so near each other, why have not one of them answered these bills? Why has no deposition been taken to prove that any one of them ever had an existence? Why, in short, has not John J. Bowie himself, answered these bills in the character of an innocent purchaser? THe defendant Stewart claims through him, and the answer of Bowie- might be received upon the same ground. This circumstance is pregnant with proof that these transfers are fraudulent and base forgeries, and that the original claimants never existed except in name. There is another peculiarity about these transfers calculated to throw discredit upon them. It is this: in thirteen of these deeds, it is manifest, from an inspection, that the name of one of the witnesses thereto is written in the same handwriting with the body of the deed, and in the .same ink. • It is not usual or common for a witness to a deed to be called on to write the deed itself; and as the witness is never after heard of, the presumption is very strong that he, too, lives only in name. • There are also twelve other deeds of transfer filed by consent, as evidence in this cause. We will not waste our time in remarking upon them. To pursue the subject further, would be worse than useless. In investigating frauds like these, the mind sickens and the feelings revolt. From a review of all the evidence in this case, we entertain no doubt that the transfer in this case, which purports to have been made from Bernardo Samperyac to John J. Bowie, is false and forged; and, consequently, upon that ground also, the defendant Stewart cannot be permitted to occupy the attitude of an innocent purchaser, fairly and bona fide, from Bowie. But his recourse is upon Bowie, of whom he purchased; and he cannot stand upon other and different ground than Bowie himself. The act of congress of the 26th May, 1824, from which this court derives its authority to decide in these cases, has been continued in force by several subsequent acts, the last of which was passed on the 8th May, 1830. That act has expressly given the power to this court to entertain bills of review in these cases, and to reverse the former decrees of this court, if, upon a revision, it shall appear that these decrees were based upon forged title papers. From the view we have taken of this case, it has not become necessary for us to consider the question made, and ably argued at the bar, whether congress have not, in the act of 1830, transcended the limits of sound legislation; and we withhold the expression of an opinion upon It, as we are satisfied that the act of 1824 referred the decision of these cases to this court, sitting as a court of chancery; and that, under the system of equity by which this court is governed, a power exists to entertain a bill of review in the present case.

BART F. VIRDEN, Judge h Appellants Samantha and Shandon Samuels appeal from the’ Washington County Circuit Court’s order adjudicating their son, A.S. (DOB: 4-8-2015), dependent-neglected. Appellants argüe that the trial court erred in finding that- there was “a substantial risk of serious harm” to Á.S. and that the trial court erred by not performing a- complete analysis of whether reasonable efforts were made to prevent or eliminate the need for A.S.’s removal from their custody. We affirm the adjudication. I. Procedural History On April 16, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect with respect to A.S. An affidavit authored by Monika Isenhower, a DHS case worker, was attached to the petition indicating that a report was received on April 9, 2015, that Samantha had dropped her newborn baby Rat the hospital. According to Samantha, she awoke to a’ thud and heard A.S. crying. Hospital staff reported ■ that Samantha had been repeatedly warned not to breast-feed the baby while alone. The hospital staff did not learn of the baby’s fall until approximately ten minutes after it had happened. Samantha admitted to hospital staff that she had called her'husband before notify-; ing them, but she later denied this. A.S. was “jittery and shaky” after the fall but ultimately did not appear to be injured. Isenhower also attested that Samantha had admitted to nursing staff that her parental rights were terminated as to two of her other children for malnourishment. Nursing staff reported concerns that Samantha was not feeding A.S.- properly, that A.S. had difficulty breast-feeding, and" that he was not gaining weight. The nursing staff observed Samantha teasing A.S. by placing her nipple in the baby’s riiouth, taking it out, and laughing. A CHRIS search revealed a true finding in August 2013 for medical neglect and failure to thrive against Samantha with respect to her twin daughters. Her parental rights to these children were terminated in October ,2014. The affidavit also indicated that Samantha had prior diagnoses of schizophrenia, bipolar disorder, ADHD, ADD, PTSD, and “split personality” but that Samantha had stopped taking her medication during, her pregnancy. Samantha told nursing staff that she did not need the medication and did not plan to resume taking her medication after she left the hospital because it made her drowsy. Moreover, Isenhower attested that Samantha had said that she planned to get a job after leaving the hospital and that Shandon would be A.S.’s caregiver. According to | ¡¡Samantha, Shandon’s own child had been removed from his custody, and he was getting help for anger management. There was information that Shan-don had violently “acted out” during a visit at the hospital to the point'that security had to be called. Isenhower stated that, on one occasion, she had attempted to speak with Shandon over the telephone about a court date, but she .stated, that Shandon was shouting and cursing so loudly-that he was unintelligible and that she was finally forced, to hang up on him. There was also information that, while Samantha’s daughters were in foster care, Shandon had beaten Samantha so badly that she was hospitalized but that Shandon had subsequently refused DHS’s offer of services for domestic-violence • counseling and random drug screens. On April 16, 2015, the trial court entered an ex parte order for emergéncy custody of A.S. and later found that probable cause existed to issue that order to protect A.S. An adjudication hearing was held on June 9, 2015. II. Adjudication Hearing Bailey Parker, a NICU nurse, testified that Samantha was drowsy following her Caesarean-section (C-section) due to pain medication.' Parker testified that, she had instructed Shandon and another person who was present in Samantha’s room that the mother was not to be left alone with the baby for the first twelve to twentydbur hours following surgery. She told them that if they had to leave the room, they should inform the nurses. Parker testified that the nursing staff was not called to sit with the mother prior to Samantha’s dropping the baby. Breanne Gilchrist, licensed master social worker' at Washington Regional Medical [¿Center, testified that Samantha had been educated to not be alone with A.S. for at least twenty-four hours because of the strong pain medication she had been given following the C-section. Gilchrist recalled that Samantha had tried to give herself credit by claiming that it was she who had told the nursing staff that she did not want to be left alone with A.S. because she was afraid she might fall asleep while holding the baby. Sabrina Knaust, clinical nurse educator at Washington Regional Labor and Delivery, testified that an investigation led her to conclude that Samantha had not hit her call light immediately after dropping the baby and that she had, instead, first called her husband. Knaust stated that Samantha had waited until' her husband walked into the room before hitting the call light to inform the nursing staff of the baby’s fall. Knaust testified that Samantha was alone with the baby because her husband had left the room. Isenhower testified with regard to Samantha’s history with DHS, repeating much of the information included in her affidavit. She further testified that her investigation into the current allegations resulted in a true finding of inadequate supervision as to both parents. Samantha admitted that she had been instructed to not be alone with Á.S. but that the nurses had left her alone. She insisted that Shandon had left while the nurses were in the room. Samantha testified that after dropping A.S., as she was getting down from the bed, she pushed the call light and that it was only after she had examined her baby for injuries that she called Shandon, She stated that she had missed three visits with A.S. since he had been in DHS custody, that two of the missed visits had related to transportation issues, and that the other one had been just a misunderstanding, about the time. Regarding, her medication, | BSamantha testified that she had been trying to get an appointment with the Ozark Guidance Center, that she had been told that they were booked, and that she was awaiting a call back. Shandon testified that he did not leave Samantha alone with the baby because he had told the nurses that he was leaving before going outside with his cousin to smoke a cigarette. According to Shandon, he saw the call light on as he rushed into the room and that, while he was comforting the baby, the nurses' entered the room. In explaining why he had visited with A.S. only twice, Shandon said that he had been sick with a stomach virus and that there had been a misunderstanding about the time of a visit., Shandon denied that the police had come to the DHS office during visitation because he and Samantha were arguing with DHS workers and screaming in the lobby. III. Adjudication & Disposition Order The trial court found that DHS’s first contact with the family arose during an emergency where immediate action was necessary to protect the health, safety, and welfare of A.S. and where preventive services could not be provided. The trial court found that DHS was deemed to have made reasonable efforts to prevent or eliminate the need to remove A.S. from the parents’ custody. The trial court noted that DHS had been involved with the family since 2013 with respect to A.S.’s siblings; that services, including home visits, drug screens, counseling, parenting classes, domestic-violence classes, and housing referrals had'not prevented the removal of the siblings due to parental unfitness; and that Samantha’s parental rights had been terminated in 2014. The trial court found that A.S. was dependent-neglectéd and at substantial risk'of serious harm due to neglect and parental unfitness. The trial court | ^concluded that the allegations in DHS’s petition were true and correct, specifically, that (1) the parents had not followed the rules of the educating nurse in that the mother was left alone with the baby while breast-feeding; the mother had fallen asleep- and dropped the baby; and the mother had failed to. immediately contact medical personnel, (2) DHS’s investigation into the incident resulted in a true finding against the parents for inadequate supervision; there had also been a true finding in August 2013 against the mother with respect to A.S.’s siblings for medical neglect and failure to thrive, which resulted in termination of Samantha’s parental rights, and (3) the mother had not been taking her “mental-health” medication. The trial court noted that since A.S. had been in DHS’s custody, DHS had made reasonable efforts to provide services, including foster care, casework services, medical services, visitation, and transportation assistance. IV. Standard- of Review Adjudication hearings are held to determine whether the allegation’s in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(l)(A) .(Supp. 2015). , Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark.Code Ann. § 9-27-325(h)(2)(B) (Supp. 2015). In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Figueroa v. Ark. Dep’t of Human Servs., 2013 Ark. App. 83, 2013 WL 548916. A finding is clearly erroneous when, although there is | evidence to support ¾ the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Maynard v. Ark Dep’t of Human Servs., 2011 Ark. App. 82, 389 S.W.3d 627. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. Id. V. Discussion A. Substantial Risk of Serious Harm A dependent-neglected juvenile means any juvenile who is at substantial risk of serious harm as a result of acts or omissions to the juvenile, a sibling, or another juvenile, including neglect and parental unfitness. Ark.Code Ann. § 9-27-303(18)(A)(v), (vi) (Supp. 2015). “Neglect” means those acts or omissions of a parent that constitute, among other things, a failure to appropriately supervise the juvenile that results in the juvenile’s being left alone in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm. Ark.Code Ann. § 9-27-303(36)(A)(vii) (6). The statutory definition of a neglected child does not require proof of actual harm or impairment. Maynard, supra. The term “substantial risk” speaks in terms of future harm. Harris v. Ark. Dep’t of Human Servs,, 2015 Ark. App. 508, 470 S.W.3d 316. Appellants do not challenge the trial 'court’s substantial-risk fact findings; rather, they argue that there was error in the legal conclusion that A.S. was at substantial risk of serious harm. According tó appellants, the trial court relied on three findings: (1) Samantha was alone jswith A.S. against instructions, (2) DHS had made a true finding in August 2013 related to Samantha’s children resulting in termination of her rights, and (3) Samantha had not restarted her “mental-health” medication. Regarding the first finding, they say that there was no risk of harm given that “A.S. rolled to the ground, uninjured,” that Samantha was no longer on pain medication two months later at the adjudica tion hearing, and that it was a one-time incident. On the second finding, appellants claim that the trial court erred in adhering to the “once terminated, - always adjudicated” ruling because of a true finding of medical neglect and failure to thrive, followed by termination of parental rights that occurred twenty-two months prior to the adjudication hearing. Appellants argue that without more .information about the circumstances of the termination, there was not enough evidence to find-that A.S. was at substantial risk of serious harm. With respect to the third finding, appellants argue that DHS produced no evidence regarding the extent of Samantha’s illnesses, that there was no information about how bipolar disorder affected Samantha’s parenting abilities, and that there was no information as to what danger, if any, she posed to A.S! while not taking her medication. We do not agree that the trial court reached its conclusion on risk of harm based only on the three findings set forth above. There was testimony that the nursing staff had instructed Shandon that Samantha was not to be left alone while breast-feeding A.S. The trial court was not required to believe appellants’ testimony that it was the nurses — not Shandon — who had left Samantha alone with the baby. The trial court specifically found that the nurses who testified were “very credible” in denying that they had left Samantha alone. | flShandon’s failure to follow simple instructions resulted in a foreseeable event — AS.’s being dropped by his mother who was under the influence of pain medication. Appellants do not dispute the trial court’s finding that Shandon’s inadequate supervision placed AS. at substantial risk of serious harm. An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. Maynard, supra. -Only one basis for dependency-neglect is required, and we thus affirm the adjudication- on the unchallenged basis that Shandon inadequately supervised the child, placing A.S. at subr stantial risk of serious harm. - See Merritt v. Ark. Dep’t of Human Servs., 2015 Ark. App. 503, 471 S.W.3d 231. B. Reasonable Effprts “Reasonable efforts” means efforts to preserve the - family before .the placement of a child in foster care, to • prevent the need for removing the child from his home .and efforts to reunify a family made after a child is placed out of his home to make it possible for him to safely return home. Ark.Code Ann. § 9-27-303(48)(A)(i). The juvenile division of- circuit court may deem that reasonable efforts, haye been made when the court has .found- that the.first contact by the department occurred during an emergency in which the child could not safely remain at home, even with reasonable services being provided. ArkCode Ann. § 9-27-303(48)(B). Appellants argue that, in concluding that DHS made reasonable efforts , to prevent removal, the trial court failed to make specific findings as required by Ark.Code Ann. § 9 — 27—328(b)(2). Appellants contend that the trial court also erred in finding that DHS made | ^reasonable efforts based on an emergency situation without also finding that A.S. would not be safe'“even with reasonable services being provided” pursuant to Ark.Code Ann. § 9-27-328(c). Finally, appellants argue that there was no evidence that DHS had offered any of the enumerated services in 2013 with respect to AS.’s siblings. The trial court was not required to make specific findings under section 9-27-328(b)(2) because this was an emergency situation in which, pursuant to section 9- 27-328(c), reasonable efforts were not required. Section 9-27~328(c) provides that when the state agency’s first contact with the family has occurred during an emergency in which the juvenile could not safely remain at home, even with reasonable services being provided, the responsible state agency shall be deemed to have made reasonable efforts to prevent or eliminate the need for removal. See also Ark.Code Ann. § 9-27-303(48)(B). In any event, reasonable efforts to reunite a child with his parents shall not be required if a court of competent jurisdiction, including the juvenile division of circuit court, has determined- by clear and convincing evidence that the parent has had her parental rights involuntarily terminated as to a sibling of the child. Ark.Code Ann. § 9-27-303(48)(C)(vi). Here, the trial court noted that Samantha’s parental rights to A.S.’s siblings were terminated, thus reasonable efforts were not required, regardless of any emergency situation. As for appellants’ argument that the trial court erred in considering services provided to them in 2013 when there was no evidence that DHS had in fact provided those services, we note that appellants did not raise any objection below. Reference to those services was first made in Isenhower’s affidavit attached to the petition for emergency custody. Appellants |-n had an opportunity to object at the subsequent adjudication hearing, and their failure to do so waives any argument on that point. See, e.g., Ashcroft v. Ark Dep’t of Human Servs., 2010 Ark. App. 244, 374 S.W.3d 743 (holding that we will not consider evidentiary arguments raised for the first time on appeal). VI. Conclusion We cannot say that the trial court’s adjudication of A.S. as dependent-neglected was clearly erroneous or clearly against the preponderance of the evidence; therefore, we affirm. Affirmed. Abramson and Whiteaker, JJ., agree. . In the judge’s oral ruling from the bench, she found that DHS’s allegation of inadequate supervision was true as to Shandon but not as to Samantha because she was under the influence of medication from her C-section.

ROBERT J. GLADWIN, Chief Judge 11 Glenn W. Myers appeals the May 28, 2015- opinion of the Arkansas Workers’ Compensation Commission (Commission), finding'that he failed to prove that-he sustained a compensable head injury and that he proved he sustained wage-loss disability-of thirty percent.' On appeal, he argues that" substantial evidence does not support the Commission’s decision that (1) he did not sustain a compensable injury to his brain; (2)- he is not permanently and totally disabled; and (3) his healing period ended on February 1, 2012, rather than March 11, 2013, We affirm. I. 'Statement of Facts At the hearing on the issues of compens-ability of appellant’s head injury, the date he reached the. end of his healing period, entitlement to additional temporary total-disability benefits- (TTD) from February 2012 until March 2013, and entitlement to permanent totajjdisability2 benefits (PTD) or additional wage-loss benefits, appellant claimed that on April 1, 2010, while working as a police officer for appellee, City of Rockport (the City), he injured both shoulders and sustained a closed-head injury in an automobile accident. Appellant, alleged that he was permanently and totally disabled or was entitled to additional, wage loss- as a..result of his injuries. ■ He also claimed that-he had reached the end of his healing period on March 11,2013. In the accident, a full-sized pickup truck struck appellant’s vehicle. The people in the pickup were killed on impact. Appellant’s car spun multiple times before striking a cinder-block wall. The initial treating surgeon, Dr. Lorio, reported on April 8, 2010, that appellant had injured his right shoulder, Dr. Lorio did not report any symptoms or signs of injury related to appellant’s 'head. Dr. Lorio specifically noted, “Patient is a thirty-four-year-old police officer who was in an MVA injuring his shoulder and MRI confirmed a rotator cuff tear and AC arthrosis.” Dr. Lorio performed right-shoulder surgery on April 16, 2010. On June 8, 2011, over one year following the compensable injury, appellant informed Dr. Lorio that he was suffering from symptoms in his left shoulder. There was no indication of a head injury. Dr. Lorio noted appellant’s complaints of “whole body soreness” following the April 1, 2010 accident, but Dr, Lorio did not report an injury to appellant’s head. Dr. Lorio performed left-shoulder surgery in October 2011 and eventually assigned a permanent rating for appellant’s left shoulder. Dr. Lorio opined on February 1, 2012, that appellant had reached maximum medicál-improvement (MMI). IsAppellant claimed that he began having headaches after the accident. Appellant first saw Dr. Baskin on December 10, 2012, and had a brain MRI on February 21, 2013. On March 11, 2013, Dr. Baskin noted the • finding 'on the MRI that he believed'represented scarring and stated that appellant was at the end of his healing period. " On referral from Dr. Baskin, neuropsy-chologist Dr. Á.J. Zolten examined appellant on February 11, 2013, and explained in a report of that date and a supplemental report dated March 13, 2014, how appellant’s measured cognitive deficits were related to a coup-contracoup injury and the finding on ,the MRI. The City sent appellant for a vocational rehabilitation assessment on September 11, 2013. The vocational-rehabilitation consultant, Heather Taylor, stated that it was unlikely appellant would ever be able to return to competitive employment. The City controverted the compensability of appellant’s closed-head injury, contending that the injury to appellant’s brain was’not supported by objective findings. The City claimed that appellant was not permahently and totally disabled but that, due to his shoulder injuries, he sustained wage-loss disability of thirteen percent. The City also contended that appellant’s healing period had ended on February 1, 2012, and controverted his claim to additional TTD. The ALJ found in favor of appellant, finding’ that he had proved by a preponderance of the evidence that he had sustained a compensable brain injury, that he was permanently and totally disabled, and that he was entitled to additional TTD from February 2012, to March 11, 2013. The City appealed to the Workers’ Compensation Commission, and the Commission found that appellant had not proved that he had sustained a compensable head Dor brain injury and had not proved that he was permanently and totally disabled. Instead, the Commission found that appellant had sustained wage-loss' disability of thirty -percent in excess- of his - bilateral-shoulder ratings. The Commission stated as follows: In the present matter, there is no probative evidence of record corroborating Dr. Zolten’s assertion that the claimant was suffering from cortical dysfunction resulting from a “coup-contracoup” injury. Instead, the evidence of record demonstrates that the claimant injured his right and left shoulders in the April 1, 2010 motor vehicle accident. There is no evidence of record showing that the claimant also injured his head. The information given an MRI examiner on February 21, 2013 was “history of traumatic brain injury' in April 2010.” Again, there is no probative evidence of record- demonstrating that the claimant suffered a traumatic brain injury on April 1, 2010. Additionally, the record does not show- that the finding of “a small focus of gliosis” in the MRI was causally related to - the April' 1, 2010 motor vehicle accident. The Commission recognizes the opinions of Dr. . Baskin, including Dr. Baskin’s determination in July 2013 of “emotional and behavioral impairments” related to an alleged traumatic brain injury. It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337-Ark. 94, 989 S.W.2d 151 (1999). In .the present matter, the record does not show that the claimant injured his head or brain on April 1, .2010. The Full Commission therefore assigns minimal evidentiary weight to the opinions of Dr. Baskin and Dr. Zolten-in the present matter., , Because the Commission found that appellant’s brain injury was not compensable, appellant was not awarded the claimed additional TTD after the shoulder surgeon had' released him as being- at MMI on February 1, 2012. A timely appeal followed. II; Applicable- Law Arkansas Code Annotated section ll-9-508(a) (Repl. ’2012) requires an employer to provide an injured employee such medical services as" may be reasonably necessary in connection with the injury received by the employee. - When the primary injury is shown to’ have arisen out of and in the course of employment, the employer is responsible for " any pnatural consequence that’ flows from that injury. Ingram v. Tyson Mexican Original, 2015 Ark. App. 519, at 5-6, 2015 WL 5770141: However, for this rule to apply, the basic test is whether there is a causal connection between the. injury and the consequences of such. Id. The burden is on the employee to establish the necessary causal connection. Id. The determination of whether a causal connection exists between two episodes is a question of fact for the Commission. Id. On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Id. Substantial evidence means such relevant evidence as a reasonable mind might accept as'adequate to support a conclusion. Id. The issue on appeal is not whether we might have reached a-'different result or whether the evidence ■ would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. Where a claim is denied, the substantial-evidence standard requires us to affirm the Commission if its opinion displays a substantial basis for the denial of relief. Id. It is the function of the Commission to determine the credibility of the witnesses and the weight given to their testimony. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. The Commission has the authority to accept or .reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Cossey v. Gary A. Thomas Racing-Stable, 2009 Ark. App. 666, 344 S.W.3d 684. The Commission is not bound Rby a doctor’s,. opinion that is based largely on facts relayed to him by the claimant where there is no sufficient independent knowledge upon which to corroborate the claimant’s claim. Id. III. Compensability In a workers’ compensation case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, i.e., that his injury was a result of an accident that arose in the course of his employment, and that it .grew out of, or resulted from, the employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). He must, prove a causal connection between the work-related accident and the later disabling injury. Id. It is not essential, however, that the causal relationship between the accident and disability be established by medical evidence. Gerber Prods. v. McDonald, 16 Ark. App. 226, 691 S.W.2d 879 (1985). Questions of causation in compensation cases must be answered in light of the facts peculiar to each case, and the answer in one is of little aid. to an answer in another. Pace Corp. v. Burns, 251 Ark. 311, 472 S.W.2d 78 (1971). ■ Appellant argues that he presented evidence to prove by a preponderance that he sustained a compensable injury. He recites the facts of the accident and claims that he began to have headaches and cognitive issues after the accident, and they were not addressed until December 10, 2012. Regardless of th.e fact that it was two years after the accident, he maintains that he proved a compensable brain injury due to his accident. Arkansas Code Annotated section ll-9-102(4)(D) requires that a compensable injury must be established by medical evidence. supported by objective findings. “Objective findings” are those findings |7which cannot come under the voluntary control of the patient. Ark.Code Ann. § ll-9-102(16)(A)(i). Appellant contends that the only evidence of record demonstrated that his cognitive deficits, which were supported by objective signs of injury, were caused by the accident. He claims that no evidence exists to contradict any of the evidence he presented, and he claims that this. is a notable fact lending credence and weight to his evidence. See Bates, supra. He contends that the evidence was that he worked for four years at this job before the accident and loved it, functioning at a high level. He tried to return after the accident and could not due to his shoulders, and because his thoughts were “cloudy.” He admits that he did not see Dr. Baskin for the headaches and cognitive difficulties until more than two years after the accident but contends that he was addressing one problem at a time: right-shoulder surgery April 16, 2010; June 8, 2011, left-shoulder surgery. He explains that it took time for the left-shoulder injury to become noticeable after the right shoulder was healing, as he was focused on the right shoulder. He contends that a similar rationale exists for the brain injury. He asserts that Dr. Zolten’s tests showed deficits consistent with a coup-contracoup brain injury. Neuropsychological testing is hot enough to establish the injury, Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002); therefore, appellant points to Dr. Baskin’s record noting that the test results were consistent with traumatic brain injury and his agreement to do an MRI. Dr. Baskin also noted that if residual scarring were present, it would be consistent with traumatic brain injury. The MRI revealed a “very small focus of high signal within the deep [¿white matter at the right frontal lobe felt to represent a small focus of gliosis of scarring.” Appellant argues that this is an objective sign of injury, and this, combined with the neuropsychological testing, constitutes objective findings. Appellant claims that thesé findings ahd opinions were disregarded by the Commission. The City argues that the Commission correctly determined that appellant did not sustain a compensable injury to his brain. The City argues that Dr. Zolten’s conclusions were based largely on appellant’s response to test questions presented to him, the doctor’s observations, and statements made by either appellant or his wife. The doctor noted that appellant’s “thought processes were clear, logical and coherent” and that his “speech and language skills were intact to observation.” The test results and answers all came from responses made' under appellant’s voluntary control. When asked to clarify any objective findings of traumatic injury related to the motor-vehicle accident, the doctor responded that while neuropsychology was an empirical science that utilized standardized techniques for measuring functional brain capacity and injury, neuropsy-chology was inexact to the extent that no direct measures of the brain are obtained, and therefore, the ■ entire work of it is based on the inferencé.that observed functioning directly related to inferred brain functioning. He said that his comments on the vector of injury were his best clinical estimate and did not necessarily mean that the vector occurred or did not occur, or whether it was or was not related to MRI findings because coup-contracoup injuries often generate bilateral findings, and oftén the contracoup injury is more severe than the site of impact. Thus, he was only guessing as to the cause of the MRI finding. 1 aDr. Baskin’s review of his medical records showed a normal head CT. The City notes that the MRI revealed no acute finding of traumatic, brain injury or residual accumulation of cerebrospinal fluid in the ventricles of the brain. The MRI simply revealed to Dr. Baskin that “this may represent a small focus of gliosis.” His' opinion was not stated within a reasonable degree of medical certainty. Arkansas Code Annotated section 11 — 9—102(16)(B) requires that medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. City contends that the Commission gave the appropriate weight to Dr. Zolten’s conclusions and guesswork, as well 'as to Dr. Baskin’s opinions. Guesswork is not the standard. Based on the evidence that there were no complaints regarding appellant’s head or brain having been injured in the accident until more than two years following the event, and there was no evidence that the MRI finding was related to appellant’s accident, reasonable minds could have concluded, as the Commission did, that .appellant did not prove the necessary causal connection. Accordingly, we affirm on the issue of compensability. IV.. PTD ■ PTD is defined by statute as the inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark.Code Ann. § ll-9~519(e)(l), The employee bears the burden of proving the inability to earn any meaningful wage. ArkCode Ann. § ll-9-519(e)(2). In considering claims for permanent partial-disability benefits in excess of the percentage of permanent-physical impairment, the Commission may take into account such factors as the employee’s age, |ineducation, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark.Code Ann. § 11 — 9— 522(b)(1). The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Thompson v. Mountain Home Good Samaritan Vill, 2014 Ark. App, 493, 442 S.W.3d 878. Appellant contends that because the record supports the conclusion that he has a compensable brain injury and that he cannot return to gainful employment, the Commission’s decision that he is not permanently and totally disabled is not supported by substantial evidence. He argues that the only evidence of récord demonstrates that he cannot sustain gainful employment. The vocational-rehabilitation counselor described his’limitations: significant memory problems; poor concentration; word-finding deficits; communication difficulties; inability to follow through with a task. He also has persistent fatigue and problems with anger and social interaction. He asserts that his wife’s testimony corroborates the counselor’s findings. The City contends that appellant is not entitled to PTD but is entitled to the wage loss determined by the Commission. The City argues that the preponderance of the evidence clearly demonstrates that appellant is unable to return to work as a police officer but does not show that he is unable to return to other employment other than for reasons allegedly attributable to a traumatic brain injury. Because we have upheld the Commission’s determination that. appellant’s head-injury claim is not compensable, the wage-loss- award is affirmed. |nV. TTD and Healing Period Temporary total disability is appropriate during the healing period in which an employee suffers a total incapacity to earn wages. Crawford v. Superior Indus., 2009 Ark. App. 738, 361 S.W.3d 290. The healing period is that period for healing of an accidental injury and will continue until the employee is as far restored as the permanent character of his injury will permit, and ends when the un derlying condition causing the disability has become stable and no treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The claimant -has the burden to - show by a preponderance of the evidence that he remains in the healing period. Hickman v. Kellogg, Brown & Root, 372 Ark, 501, 277 S.W.3d 591 (2008). Appellant argues that Dr. Lorio released him as having reached MMI on his shoulders on February 1, 2012. After that, his only medical attention was for his brain injury. Thus, the date his healing period ended should be determined, by tile compensability of his brain injury. Because we affirm the Commission’s denial of compensability, we must also affirm its decision that appellant’s healing period ended on February 1,2012. . Affirmed. Glover, Hixson, and Hoofman, JJ., agree. Abramson and Kinard, JJ., dissent.

DAVID M. GLOVER, Judge ■ h Katherine Velasco’s parental rights to her four children, A.B. (dob 11/14/04), A.V. (dob 2/1/06), M.M.V. (dob 8/24/07), and M.A.V. (dob 12/27/11), were terminated by the Pulaski County Circuit Court. Ms. Velasco now appeals the termination. We affirm the trial court’s decision. . On August 22, 2014, the Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on the children after the Pulaski County Narcotics Unit executed a search warrant on the Velasco home based on information that the Velascos were selling drugs there with the children present. The search yielded a meth pipe, a marijuana pipe, and marijuana in the children’s room, as well as two pounds of marijuana, two ounces of meth, firearms, and other drug paraphernalia in other areas of the house. Both of the Velascos were | «¡arrested and charged with child endangerment and various drug charges.. Ms. Velasco initially denied any knowledge..of her husband selling drugs from her home, but she later, admitted he had been selling drugs. DHS filed a petition for ex parte emergency custody and dependency-neglect on. August 25, 2014, based on these events, and an ex parte order for emergency custody was entered that same day. On September 23, 2014, a probable-cause order continuing custody of the children with DHS was entered. On November 6, 2014, an order adjudicating the children dependent-neglected was entered. In this order, the trial court found that two of the children had tested positive for THC, as had Ms. Velasco. Furthermore, the trial court found by clear and convincing evidence that the Ve-lascos had subjected the children to aggravated circumstances in that the' children were neglected such that the'neglect could endanger their lives, and there was little likelihood that services to the family would result in successful reunification. In making the aggravated-circumstances finding, the trial court specifically relied on the August 22 drug raid, at which the children were present; the fact that drugs, drug paraphernalia, and a firearm were found within easy reach of the children during the raid; the positive drug-test results; evidence of marijuana next to a birthday cake, a dead rat on the kitchen counter, and an infestation of roaches in the home; the fact that ,Ms. Velasco admitted Mr. Velasco had been selling drugs from the house; and the pending criminal charges against both parents. The trial court noted in its order that Ms. Velasco, testified she and Mr. Velasco had separated. Ms. Velasco did not appeal the adjudication order. On February 5, 2015, a review order was filed. In this order, the trial court changed |3the goal of the case to termination of parental rights, finding that shortly after the last hearing, Mr. Velasco had moved back into the house, and a second drug raid had been conducted there, resulting in further criminal charges. The trial court rejected Ms. Ve-lasco’s claim that she did not know drugs were again being sold out of the house, and it made a second finding of aggravated circumstances, again finding that it was unlikely that services to the family would result in successful reunification. DHS filed a petition to terminate parental rights on February 26, 2015. After a hearing, the trial court terminated Ms. Velasco’s parental rights in an order entered on May 28, 2015. The appellate courts review termination orders de novo. Singleton v. Arkansas Dep’t of Human Servs., 2015 Ark. App. 455, 468 S.W.3d 809. Ah order terminating parental rights must be based on clear and convincing evidence. Camarillo-Cox v. Arkansas Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). The trial court’s findings will not be reversed unless they are clearly .erroneous — when, although there is evidence to support it, the reviewing court,' on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Strickland v: Arkansas Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). Credibility- determinations are left to the factfinder. Singleton, supra. In order to terminate parental rights, the trial court must determine by clear and convincing evidence'that such termination is in the child’s best interest, including consideration of 'the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. Ark. Codé Ann. '§ 9-27~341(b)(3)(A) (Supp. 2015). One of the' statutory grounds for termination ' in Arkansas Code Annotated 14section 9-27-341(b)(3)(B) must also be proved by clear and convincing evidence. Ms. Velasco does not challenge the statutory grounds for termination, nor does she challenge the trial court’s finding that her children are adoptable; She does; however, take issue with the second prong of the ■■ best-interest- - analysis — the trial court’s finding that the children would be subject to potential harm if returned to her custody. In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability the child receives in a permanent home. Collins v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 90, 2013 WL 546940. On appeal, Ms. Velasco argues that her children would not be subjected to potential harm if returned to her custody. In support of this assertion, Ms. Velasco points to the testimony at the termination hearing that she has been in a faith-based substance-abuse program and is doing well in the program; .she has had negative drug screens; she has made Rail of her visits with her children; that although a home study had not been performed, the caseworker admitted the home appeared to be stable; and, while Ms. Velasco had not provided verification of her employment, she had testified she had been employed since October 2014. Ms. Velasco also asserted-she had reached a plea- deal on her criminal charges that would place -her on one year of probation without any jail -time. While it is true there was testimony that Ms. Velasco had shown progress with regard to getting her life back on track, the fact remains that drug raids were made on the Velasco home, not once, but twice. While the children were not present in the home for the second drug raid, the fact that drugs continued to be sold out of the house after the children had been removed due to the first drug raid is an indication of where the parents’ priorities lie. WMe Ms.: Velasco argues it was her husband, not her, who was selling drugs, the trial court ¿id not find her statements that she was unaware that drags were being sold out of her house to be credible, especially in light of her past statements in which she admitted she knew drags were being sold. Furthermore, Ms. Velasco .testified at the termination hearing she loved Mr. Velasco and was still in a relationship with him, while at the same time asserting that she would not allow him to come back into the home until he obtained help with his substance-abuse issues. The trial court found Ms. Velasco was not credible, and it was concerned that if .the Velascos stayed together, there would be future drug activity around the children. We cannot say that the trial court’s findings with regard to potential harm were clearly erroneous. While Ms. Velasco has indeed made strides in improving her life, the trial court did not find her to be' a credible witness. There had been not one, but two, drug raids in the Lhome, and the trial court believed Ms. Velasco was aware of the drag activity in her home. Furthermore, Ms. Velasco professed she still loved Mr. Velasco, and they were still together at the termination hearing. A parent’s past behavior is often a good indicator of future behavior. Singleton, supra., While Ms. Velasco may not have been the one selling the drags, she was aware it was occurring and had not demonstrated that she was willing to put the well being of her children above her relationship with Mr. Velasco and his criminal activity. Affirmed. Gladwin, C.J., and Vaught, J., agree. . The parental rights of Adrian Masestas, putative father of A.B., and Miguel Velasco, legal father of A.V., M.M.V., and M.A.V., were also terminated; however, neither of these men is a parly to this appeal. . One of the grounds for termination alleged by DHS in its petition for termination of parental rights was Arkansas Code Annotated section 9-27-34 l(b)(3)(B)(ix)(<z )(3 ), that the children had been subjected to aggravated circumstances. A finding,of aggravated circumstances was made in. this case at the adjudication hearing. In termination cases, a challenge to a finding of aggravated circumstances must be made, if at all, in an appeal from the adjudication order, and if one fails to appeal from an adjudication order in which an aggravated-circumstances finding is made, one is precluded from asserting error with respect to that finding on appeal from an order terminating parental rights. Holloway v. Arkansas Dep’t of Human Servs., 2015 Ark. App. 458, 468 S.W.3d 805. Velasco acknowl’edges that she -did not appeal the adjudication order in which the finding of aggravated circumstances was made and therefore cannot now attack that ground for termination on appeal. "

PER CURIAM. | Appellant R.J. Chiodini appeals from the Stone County Circuit Court’s entry of a decree quieting title to certain real property in accordance with a survey conducted by Mr. Eugene Gorton. Appellant raises four points on appeal: (1) the circuit court erred (a) in failing to deem admitted Appellant’s requests for admission; (b) in finding Appellee’s responses to interrogatories complete; and (c) in sanctioning Appellant by prohibiting further discovery; (2) the circuit court erred in denying Appellant’s motion for summary judgment; (3) the decree quieting title entered by the circuit court following a bench trial on September 29, 2008, was not supported by substantial evidence; and (4) the circuit court erred in failing to sanction Appellee for violation of the Arkansas Rules of Civil Procedure governing discovery. However, Appellant did not abstract the complete trial transcript and L.only a partial transcript of the trial appears in the record. The notice of appeal reflects that Appellant designated “relevant portions of Court Transcript.” Additionally, in the abstract, Appellant indicates that he did not abstract the trial testimony of several witnesses because their testimony was not considered to be “essential or relevant ... to the issues in this case.” Under Arkansas Supreme Court Rule 4-2(a)(5), the abstract should consist of the following: The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Depositions shall be abstracted in a similar fashion. Ark. Sup.Ct. R. 4-2(a)(5) (2009). In the instant case, Appellant challenges the sufficiency of the evidence supporting the decree. Yet, he fails to include a complete trial transcript in the record, and he fails to provide a proper abstract of the transcript that includes all material parts of the testimony as are necessary to an understanding of all questions presented to our court for decision. Under Arkansas Supreme Court Rule 4 — -2(a)(8), the addendum should include all|sdocuments essential to an understanding of the case: Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal .... Depending upon the issues on appeal, the Addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court’s findings and conclusions of law; orders; administrative law judge’s opinion; discovery documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the Court’s jurisdiction on appeal such as the notice of appeal. Ark. Sup.Ct. Rule 4-2(a)(8) (2009). In this case, neither the addendum nor the record includes documentary proof of the date when Appellant’s complaint and first request for admissions were served on Ap-pellee. Such proof of service is essential to an understanding of Appellant’s first point on appeal. Here, the notice of appeal did not make a request for the entire record of the proceedings below. As we stated in Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005), pursuant to Ark. R.App. P.-Civ. 6(c), where the parties in good faith abbreviated the record by agreement or without objection from opposing parties, this court “shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to the appellant and reasonable opportunity to supply the deficiency.” Ark. R.App. P.-Civ. 6(c) (2009). Further, pursuant to Rule 6(e), this court can sua sponte direct the parties to supply any omitted material by filing a certified, supplemental record. Ark. R.App. P.-Civ. 6(e); Gilbert v. Moore, supra. We recognize that the record presently before us is abbreviated due to the materials requested by Appellant in his notice of appeal and designation of the record. See, e.g., Selmon v. Metropolitan Life Ins. Co., 371 Ark. 306, 264 S.W.3d 547 (2007). Ap-pellee failed to object to the abbreviated record and did not file a designation of any additional materials he believed should have been included in the record. Thus, Appellee tacitly consented to the record. See id. (citing Gilbert v. Moore, supra). Pursuant to Ark. R.App. P.-Civ. 6(c) and (e), we order Appellant to supply this court with a certified, supplemental record that includes a complete trial transcript and the proof of service referenced above (if part of the proceedings below), within sixty (60) days of the issuance of this opinion. Appellant is further ordered to file a substituted brief that includes an abstract of the complete trial transcript and an addendum as required by Ark. Sup.Ct. R. 4-2(a)(5) and (a)(8) (2009). While examples of deficiencies in the abstract, addendum, and record are noted above, we encourage Appellant, prior to filing the substituted brief, to review our rules and his substituted brief to ensure that no additional deficiencies are present. Rebriefing and supplemental record ordered. . In the abstracting of testimony, "the first person (i.e., "I”) rather than the third person (i.e., "he, she”) shall be used,” and the "abstract or abridgement of the transcript should consist of an impartial condensation ... of the testimony of the witnesses and colloquies between the court and counsel and other parties. ...” Ark. Sup.Ct. R. 4-2(a)(5) (emphasis added). Thus, the abstract should be a condensed version of the transcript, not a verbatim copy.

ANNABELLE CLINTON IMBER, Justice. 12Appellants consist of various school districts in Arkansas and James O. Cox, a taxpayer and resident of the Greenwood School District (together “Appellants”). Appellants originally filed a complaint against Mike Huckabee, in his capacity as Governor of Arkansas, and other state officials (together “Appellees”), on May 30, 2003. The original complaint alleged that Appellees were illegally diverting equaliza tion funds (now called “foundation funds”) to satisfy court-ordered desegregation costs in Pulaski County and to provide additional base funding for school districts that did not meet other funding standards. On September 4, 2003, Appellants filed their first amended complaint and raised the additional claim that Appellees were “divert[ing] funds from the Uniform Rate of Tax under Amendment 74 ... contrary to law.” The first amended complaint also alleged that Appellees were diverting funds from the Educational Excellence Trust Fund “contrary to law.” Eventually, on May 24, 2005, Appellants filed another Complaint and Motion for Injunctive Relief, in which they asserted that “[t]his is an action for, among other things, lüillegal exaction and injunctive relief.” The 2005 complaint alleges that Ap-pellees were constructively retaining and unlawfully diverting funds derived from Amendment 74 property taxes and funds allocated to the Educational Excellence Trust Fund. Shortly thereafter, Appellees filed a motion to dismiss Appellants’ complaint. The motion listed six grounds for dismissal: (1) Appellants lack standing to bring this action; (2) Appellants’ complaint failed to state a claim on which relief could be granted; (3) the claims are barred by res judicata; (4) some of Appellants’ claims are not ripe for adjudication; (5) Appellants’ complaint failed to name necessary and indispensable parties; and (6) the State is immune from suit in state court for money damages. The circuit judge denied Appellees’ motion to dismiss on October 26, 2006. On August 8, 2007, Appellants moved for summary judgment. Appellees responded by filing their own motion for summary judgment on August 28, 2007, in which they listed the following grounds: (1) Appellants’ claim for money damages are barred by Article 5, Section 2 of the Arkansas Constitution; (2) Appellants’ claims are barred by res judicata; (3) Appellants’ “funds type” illegal-exaction claim entitles them to prospective injunctive relief only; (4) Appellants’ claims relating to acts prior to 2002 are barred by the applicable statute of limitations; (5) Appellant school districts are neither taxpayers nor citizens and lack standing to sue for illegal-exaction; (6) Appellant James O. Cox’s claims for refund of taxes spent prior to 2005 are barred by the voluntary payment rule; (7) Appellants’ claims for injunctive relief are barred by separation of powers; (8) Appellants fail to state a claim |4upon which relief can be granted; and (9) Appellants’ claims for injunctive relief are moot. On March 28, 2008, the circuit court denied Appellants’ motion for summary judgment and granted summary judgment in favor of Appellees. It is from this order that Appellants appeal. We have jurisdiction over the instant case pursuant to Ark. Sup.Ct. R. 1 — 2(a)(1) and (b)(1), (3), (4) and (5) (2009). I. Standard of Review In reviewing summary judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof showing a material issue of fact. Parker v. Perry, supra. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Id. |JI. Whether Appellees Constructively Retained, or Misapplied, the Uniform Rate of Tax Funds Appellants argue that amendment 74 provides funding for education in addition to state funding. They assert that the General Assembly, by subsequent legislative enactments, has used the growth in funding from ad valorem tax collections under the amendment to make a corresponding reduction in state foundation-funding aid. Appellants further suggest that, while the revenue generated from each county’s ad valorem tax collection grows with changing property assessments, the State should still be required to contribute the same amount of foundation funding per student, even if that results in a total per pupil amount over that set by the General Assembly pursuant to Ark. Code Ann. § 6-20-2305 (Repl.2007). Appellees counter Appellants’ claims by asserting that amendment 74 does not place any limits on the General Assembly as to how it appropriates the money in excess of that generated by amendment 74. While Appellees acknowledge that the General Assembly must provide a substantially equal opportunity for an adequate education to the students of this State, they also point out that the Uniform Rate of Tax (“URT”) alone generates nowhere near enough funding to meet the adequacy amounts set out in Ark. Code Ann. § 6-20-2305. In effect, Appellants claim that there has been an illegal exaction because the State has retained and misapplied funds that were meant solely for the purpose of education. Article 16, section 13 of the Arkansas Constitution permits a citizen of this state to pursue Ran illegal-exaction claim. This court has stated that [a]n illegal exaction is defined as any exaction that either is not authorized by law or is contrary to law. Two types of illegal-exaction cases can arise under Article 16, Section 13: “public funds” cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, and “illegal-tax” cases, where the plaintiff asserts that the tax itself is illegal. White v. Ark. Capital Corp./Diamond State Ventures, 365 Ark. 200, 206, 226 S.W.3d 825, 830 (2006) (internal citations omitted). This is a public funds case, and to prevail on their claim, Appellants must show that the State misapplied or illegally spent money that was lawfully collected pursuant to ad valorem property taxes. In November 1996, the state’s voters adopted amendment 74 to the Arkansas Constitution, amending article 14, section 3. Article 14, section 3 now reads in relevant part as follows: (a) The General Assembly shall provide for the support of common schools by general law. In order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a, system, some funding variations may be necessary. The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. It is farther recognized that funding variations or restrictions thereon may be necessary in order to comply with, or due to, other provisions of this Constitution, the United States Constitution, state or federal laws, or court orders. (b)(1) There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of 17the schools. (2) Except as ‘provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools in the school district. The rate of tax available for maintenance and operation levied by each school district on the effective date of this amendment shall be reduced to reflect the levy of the uniform rate of tax. If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment exceeds the uniform rate of tax, the excess rate of tax shall continue to be levied by the school district until changed as provided in subsection (c)(1). If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment is less than the uniform rate of tax, the uniform rate of tax shall nevertheless be levied in the district. (3) The uniform rate of tax shall be assessed and collected in the same manner as other school property taxes, but the net revenues from the uniform rate of tax shall be remitted to the State Treasurer and distributed by the state to the school districts as provided by law. No portion of the revenues from the uniform rate of tax shall be retained by the state. The revenues so distributed shall be used by the school districts solely for maintenance and operation of schools. (4)The General Assembly may by law propose an increase or decrease in the uniform rate of tax and submit the question to the electors of the state at the next general election. If a majority of the electors of the state voting on the issue vote For the proposed increase or decrease in the uniform rate of tax, the uniform rate of tax shall be increased or decreased as approved. If a majority of the electors of the state voting on the issue vote Against the proposed increase or decrease in the uniform rate of tax, the uniform rate of tax shall continue to be levied at the rate for the year in which the election is held. (c)(1) In addition to the uniform rate of tax provided in subsection (b), school districts are authorized to levy, by a vote |8of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness. The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. The Board of Directors shall submit the tax at the annual school election or at such other time as may be provided by law. If a majority of the qualified voters in the school district voting in the school election approve the rate of tax proposed by the Board of Directors, then the tax at the rate approved shall be collected as provided by law. In the event a majority of the qualified electors voting in the school election disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding school election. However, if the rate last approved has been modified pursuant to subsection (b) or (c)(2) of this section, then the tax shall be collected at the modified rate until another rate is approved. Ark. Const, art. 14, § 3 (Repl.2004) (emphasis added). We construe constitutional amendments liberally to accomplish their purposes. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994). It is the duty of the court to construe the constitution as written. Cannon v. May, 183 Ark. 107, 35 S.W.2d 70 (1931). We construe a constitutional provision in such a way that an express purpose or implied result will be given effect. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968). It is also the duty of this court to construe constitutional sections so that the instrument as a whole is harmonious if it is possible to do so. Huggins v. Wacaster, 223 Ark. 390, 266 S.W.2d 58 (1954); Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930). This court has analyzed the purpose and effect of amendment 74 many times and has stated, Amendment 74 established the uniform rate of taxation of twenty-five mills for each school district to be levied on the assessed value of property and to be used solely for the maintenance and operation of the schools. The revenues collected are sent to the State, and the State later distributes the total funds back to the school districts. See, e.g., Lake View Sch. Dist. No. 25 v. Huckabee, 364 Ark. 398, 402, 220 S.W.3d 645, 648 (2005) (Lake View 2005). The funds generated from the URT, however, only partially fund the basic foundation funding in any given year. Id. at 401, 220 S.W.3d at 647. According to the Continuing Adequacy Evaluation Act of 2004, also known as Act 57, the General Assembly is required, in each interim, to conduct an assessment of the “entire spectrum of public education across the State of Arkansas to determine whether equal educational opportunity for an adequate education is being substantially afforded to the school children of the State of Arkansas.” ArkCode Ann. § 10-3 — 2102(a)(1) (Supp.2007). Senate and House committees are charged with conducting the assessment and must report their findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House of Representatives no later than September 1 of each year prior to the convening of a regular session. Ark.Code Ann. § 10-3-2104(a) (Supp.2007). Each report must include, among other things, a recommendation regarding resources needed. Id. |in§ 10-3-2104(b). The amount of foundation-funding aid each school district receives in a given year is computed as “the difference between the foundation funding amount pursuant to subdivision (a)(2) of this section and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus the miscellaneous funds of the school district.” Ark.Code Ann. § 6-20-2305(a)(1)(A) (Repl.2007). Pursuant to subdivision (a)(2), the foundation funding amount for the 2007-2008 school year was set at $5,719 per student multiplied by the school district’s average daily membership for the previous school year and $5,789 per student for the 2008-2009 school year. Id. § 6-20-2305(a)(2)(A), (B). Thus, given the provisions of amendment 74 and the statutes enacted by the General Assembly, each school district in Arkansas, for the 2007-2008 school year, would receive foundation-funding aid according to the formula in section 6-20-2305(a)(l)(A). For example, in 2007-008, the State made up the difference between $5,719 per student and the revenue generated by the 25 mills URT in any given school district. Appellants, nonetheless, argue that, even if the funding generated by the 25 mills URT grows as the value of the property increases, the State cannot reduce its funding accordingly. We disagree. Amendment 74 does not place any limits on the General Assembly as to how it appropriates the money in excess of that generated by amendment 74 | ^following the legislature’s assessment of the resources needed to provide a substantially equal opportunity for an adequate education to the students of this State. Amendment 74 provides that [i]n order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. Art. 14, § 3(a) (Repl.2004). Appellants suggest that the reference to “additional funds” means the funds raised by the base millage rate of 25 mills (including any growth in collections). According to Appellants’ rationale, this reference to the URT as “additional funds” implies that there should be no reduction in funds provided by other means. Such an interpretation, however, fails to take into account section 3(c)(1), which provides that, “[i]n addition to the uniform rate of tax provided in subsection (b) [25 mills], school districts are authorized to levy, by a vote of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness.” Art. 14, § 3(c)(1) (emphasis added). Thus, according to its plain language, amendment 74 “allows for variances in school district revenues above the base millage rate of 25 mills, which may lead to enhanced curricula, facilities, and equipment which are superior to what is deemed adequate by the State.” Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004) (Lake View 2004); Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 43, 91 S.W.3d 472, 478 (2002)(Lake View 2002). Appellants claim that, by reducing the funds from the State when there is growth in the revenue generated from the URT, the State is constructively retaining the URT funds. Once again, we must disagree. First, there is no dispute that the State distributes all URT funds collected back to the school districts. Lake View 2005, 364 Ark. at 402, 220 S.W.3d 645, 648. As noted by Appellees, the result urged by Appellants “would directly tie the adequacy amount to property wealth in the State.” This court has decreed that the State of Arkansas must provide the children of this State with an adequate and substantially equal education. Lake View Sch. Dist. No. 25 v. Huckabee, 362 Ark. 520, 210 S.W.3d 28 (2005). We have expressly stated that, while amendment 74 does authorize funding variances, it “does not authorize a system of school funding that fails to close the gap between wealthy school districts with premier educational programs and poor school districts on the lower end of the economic spectrum, which are mired in poverty and unable to provide a system of education much above the most elementary kind.” Lake View 2002, 351 Ark. at 77, 91 S.W.3d at 499. The school-funding system, fashioned by the General Assembly in response to this court’s decisions in the Lake View litigation, set a base level of funding per student required to provide a constitutionally adequate and substantially equal education. Ark.Code Ann. § 6-20-2305. To reach that amount of per-student funding, the URT revenues are calculated, and the State then makes up the difference with foundation-funding aid. In 113sum, the twenty-five mills URT and the net revenues it generates are used to determine the amount of state foundation aid, as opposed to Appellants’ premise that amendment 74 revenues merely supplement state funding. Lake View 2005, 364 Ark. at 402, 220 S.W.3d at 648. In addition to the foundation funding set forth in section 6-20-2305(a)(2)(A) and (B), the General Assembly appropriated an additional $51.00 per student for the 2007-2008 school year and $36.00 for the 2008-2009 school year. Ark.Code Ann. § 6-20-2305(a)(2)(C)(i). The statute states that these funds, to be known as “Enhanced Educational Funding,” are “in addition to the amount of funds necessary to provide an adequate education as required by the Arkansas Constitution.” Ark.Code Ann. § 6 — 20—2305(a)(2)(C)(ii)(6). The statute further states that the funds were “available from a combination of fortunate economic factors, conservative budgeting of all state government, and the favorable forecast of state revenues,” but could not “be ensured and relied on beyond the 2007-2009 biennium.” Id. Appellants posit that this additional $87.00 per student over two years is the amount of amendment 74 growth over the same period. Accordingly, Appellants contend that this is evidence of the General Assembly’s recognition that it must apply all of the growth in amendment 74 funds toward foundation funding. Such an argument is contrary to the statute’s plain language. In fact, it is nothing more than a challenge to the adequacy of the 114State’s funding for education. We therefore conclude that Appellants’ allegations concerning the application of amendment 74 funds do not support a claim for illegal exaction. III. Whether the State Constructively Retained and Misapplied Educational Excellence Trust Funds Appellants make a similar argument with respect to the Educational Excellence Trust Fund (“EETF”). Under section 6-5-308, the funds from general revenues allocated and accruing to the EETF were to supplement, not supplant, funding for public education in this case. Appellants assert that the State constructively retained funds from the EETF because, as the EETF grows, the funding to public schools either remains static, actually declines, or does not keep pace with the growth in EETF. Appellees respond that EETF is a revenue source to fund the Public School Fund, and it does not replace the Public School Fund, but provides an additional source of revenue for that fund. The State alleges that there is no restriction on the General Assembly’s ability to allocate this revenue source that it has created, and Appellants cannot have this court take over that role of the General Assembly and direct how state revenue is to be allocated. The EETF was established in 1991 by Act 10, as amended, and is currently codified | isat Ark.Code Ann. §§ 6-5-301 et seq. (Repl.2007). Arkansas Code Annotated § 6-5-302 provides that a portion of specified general revenues is to be used to contribute to certain education accounts. Ark.Code Ann. § 6-5-302 (Repl.2007). Section 6-5-308 is entitled “Legislative intent — Supplemental funding for public education” and states, It is the intent of this subchapter to supplement, not to supplant, funding for public education in this state. Nothing herein shall be construed to reduce that portion of general revenue or growth revenues which would otherwise accrue to the Public School Fund. The moneys provided by this subchapter are intended to be in addition to those anticipated to be provided to fund public education for the children of this state at the same historical proportionate levels. Ark.Code Ann. § 6-5-308 (Repl.2007). Appellants contend that public school funding has been reduced after the establishment of the EETF and the State is using EETF proceeds “to meet the funding levels for an ‘adequate’ education to supplant state funds, but not to supplement that level.” Appellants assert that, while state revenues increased from 1991 to 2006, the Public School Fund represented 49.79% of total state revenues in 1991; whereas, in 2006, the Public School Fund, excluding EETF proceeds, represented 44.05% of total state revenue. Appellees respond that the General Assembly appropriates state funds to the Public School | mFund based not on available revenue, but on educational need as determined by the biennial studies performed pursuant to Act 57, codified at Ark.Code Ann. §§ 10-3-2101 to -2104. We agree. This court has expressly rejected a school-funding system that looks primarily to the resources available instead of need. See Lake View 2002, 351 Ark. 31, 91 S.W.3d 472; Ark.Code Ann. § 6-20-2305. Appellants have not shown how the State is using EETF funds to supplant its foundation-funding aid contribution to reach the amount per student established pursuant to section 6-20-2305. Thus, Appellants’ illegal-exaction claim based upon the misapplication of EETF proceeds is without merit. We agree with the circuit court that the Appellees are entitled to judgment as a matter of law. Because we affirm the circuit court’s grant of summary judgment in favor of Appellees, we need not consider the affirmative defenses raised by Appel-lees. Affirmed. Special Justice GARY B. ROGERS, joins. WILLS, J., not participating. . School districts included are: Fort Smith School District, Greenwood School District, Lavaca School District, Alma School District, Ozark School District, Mansfield School District, Van Burén School District, County Line School District, Charleston School District, Paris School District, Cedarville School District, Mulberry School District, Mountainburg School District, Bryant School District, Jes-sieville School District, and Booneville School District. . State officials included in the original complaint were: Mike Huckabee, Governor, State of Arkansas; The Arkansas State Board of Education, Jonell Caldwell, Chair; Shelby Hillman; Mary Jane Rebick; Dr. Calvin King; Dr. Jeanna Westmoreland; Sherry Burrow; Randy Lawson; Diane Tatum; and Dr. Nac-caman Williams, all in their official capacities as members of the State Board of Education. . The EETF contributes to twenty-eight separate trust funds or accounts, two of which are part of the Public School Fund Account. The Public School Fund Account itself included sixty-five line-item appropriations for various educational programs, many of which were completely separate from the foundation funding aid set forth in section 6-20-305.

Wood, J. Claud L. Hollan, hereafter called appellant, doing business under the name of Hollan Auto Company, executed certain notes to the American Bank of Commerce & Trust Co., hereafter called the appellee. We will refer to these loans as the first, second, third, fourth, fifth and sixth loans, in the order in which the notes were executed. The first note was for $4,000 dated October 23, 1.919, due in thirty days. The note contained this recital: “Negotiable and payable without defalcation or discount at the office of the American Bank of Commerce & Trust Company at Little Bock. Arkansas, with interest from date at the rate of eight per cent, per annum until paid.” This note was extended from thirty days without renewal until June 23, 1920, and from the last mentioned date was extended by renewal notes each month until April 20,1921. Two credits were made on the note, representing the proceeds of sales of cars, the balance of the indebtedness being represented by a renewal note for $1,000 executed April 20, 1921, bearing interest at the rate of 10 per cent, per annum from date until paid. The second note was for $2,750, due in thirty days after date, at 8 per cent, per annum, bearing the recital, “negotiable and payable without defalcation or discount at the office of the appellee,” etc. This note was ex tended ■without renewal from thirty days to June 6th. From the last named date it was extended monthly by renewal notes until April 3, 1921. Two credits were made upon the renewal notes, representing proceeds of sales of cars, and the balance of the indebtedness on the second loan is represented by note of April 3, 1921, for $850. The third loan was represented by two notes, one for $2,511 and the other for $2,631, executed March 10, 1921, due in thirty days after date, bearing interest at the rate of 8 per cent, per annum from date until paid, with similar recitals as to defalcation and place of payment. The note for $2,511 was extended from thirty days without renewal until June 9, 1920, and by renewal note from thirty days thereafter until February 7, 1921. On October 13, 1920, a payment of $850 was credited on one of the renewal notes, and the original indebtedness on the note for $2,511 is now represented by a balance of $1,660, evidenced by nóte of February 7, 1921. The note for $2,631 was extended without renewal from thirty days until June 9,1920, and from the last named date by renewal each month until April 9, 1921. On November 6, 1920, a payment of $881, representing the proceeds of a sale of a car, was credited on the back of one of the extension notes, and the balance of the original indebtedness on the note for $2,631 is represented by note of April 8, 1921, for $1,750. The fourth loan is represented by a note for $2,650 executed April 5,1920, due in thirty days after date, with interest at 8 per cent, per annum from date until paid, with similar recitals as to defalcation and place of payment. This note was extended without renewal from thirty days until June 4, and from the last mentioned date from thirty days by renewal until April 3, 1921. On June 7, 1920, and Sept. 18, 1920, credits of $850 and $900, respectively, were made on this loan, and the balance of $900 is now represented by note dated April 3, 1920, for that amount. Tlie fifth loan is represented by two notes of $2,000 each, executed .September 20, 1920, due in thirty days, bearing interest at 10 per cent, per annum from maturity until paid, with similar recitals as to defalcation and place of payment. No payments were made upon these notes, and the indebtedness is now represented by renewal notes executed January 19, 1921. The sixth loan is represented by two notes dated May 4, 1921, due on or before ninety days, in the respective sums of $1,235.26 and $1,200, bearing interest at the rate of 8 per cent, per annum from date until paid. These notes were never renewed. This action was instituted by- the appellee against the appellant to recover the balance alleged to be due on the above loans and to foreclose the mortgages on certain automobiles given as security. The notes and mortgages .are set up and described in the complaint. The defense was the plea of usury. The appellant alleged that the loans were usurious because of interest and brokerage and bonus required to be paid by appellant to the appellee, which amounted to a greater rate of interest than 10 per cent, per annum for the use of the money loaned. The court rendered a decree in favor of the appel-lee for the balance due on the several loans in the sum of $13,231.86, with interest at the rate of 8 per cent, per annum from date of the decree until paid, and foreclosed the mortgages on certain automobiles executed to secure the indebtedness to satisfy the same. From that decree is this appeal. 1. The appellant contends that the first and fifth loans were usurious, because of certain bonuses or commissions exacted by and paid to J. F. Walker as a condition upon which the loans were obtained, and a consideration therefor, in addition to the 8 per cent, interest. Concerning the first loan for $4,000, dated October 23, 1919, the appellant testified as follows: “There was no brokerage to the bank on this first loan. I did not pay Mr., Walker a premium in getting a loan, but I did pay him $25 each, for the sale of the two cars which I sold from that shipment. I had an agreement with him beforehand to do this. * * * He told me beforehand that he would charge $25 for each car. I paid the $50 on the first two. I haven’t paid it on the last because I haven’t sold the car. This made $50 I paid for the,loan, in addition to the small items charged for exchange, stamps, and notary fee.” Walker testified concerning this as follows: “I am vice-president and treasurer of plaintiff bank, and was in 1919-20. I have had charge of the lending of money to the Hollan Auto Company for which the notes in suit were given, beginning in the fall of 1919. * *' * In regard to the $4,000 of October 23,1919, secured by King cars-, he came to my office with a draft and bill of lading attached and wanted the loan. * * * I told him I would let him have the money, and so the- loan was fixed up. After this he said, ‘It is certainly a relief to get these cars unloaded. You are the only one that takes any interest in helping me.’ He said, ‘I am going to give yon personally $25 out of each car sold.’ I said, ‘You don’t owe me anything.’ That was no part of the making of the loan and no part of the consideration. In April, six months later, he handed me a check for $50’ and said ‘That is for 3rou individually. The bank has got nothing to do with it.’ I took the' check and used it. The bank-got none of the proceeds.” In regard to the fifth loan the appellant testified as follows: “This deal was a little different from the others. At the time the cars came Walker refused to unload them for me; he said the banks had quit loaning money on the cars at 80 per cent, of the value. They remained on the tracks for about three weeks. I went to him several times, and he finally told me that he would loan me the $4,000 if I would pay the interest in advance and pay him something for giving the loan. I told him I wouldn’t have anything to pay him with. I said, ‘I can get a $25 liat.’ He said, ‘All right, get that and I will.’ I got the hat for him at Poe’s. So he got the hat. I went out and borrowed the rest of the money to unload the cars. The interest was paid in advance. The loan was not made until four or five clays after the hat was agreed on. I sent him the hat the same evening the loan was agreed to. He exacted the $25 of me, and I told him I didn’t have it, and the hat was agreed on instead of the money.” Walker testified concerning this loan as follows: “He was having some trouble in handling that shipment. He wanted a fuller loan. He first applied for a $4,500 loan on the two Boamer ears, and I told him I couldn’t handle it, so he went out and tried to handle it elsewhere. He came in several days later and said ho couldn’t raise the money. He came in a third time; that is, he met me on the street, near his plane of business, and took it up with me again. He said I must help him unload those Boamers. I said, ‘Claud, I can’t lend you $4,500 on those cars.’ He said, ‘I have prospects; I think I can sell those cars. It won’t be necessary to carry them very long in stock. There’s demurrage piling up against me on those cars. I’ve got to get them out. I’ve got nobody else to go to but you. You have always been my friend, and I depend upon you.’ He asked me what I could lend him, if I couldn’t lend him $4,500. I made him a proposition I would recommend a loan of $4,000 — $2,000 on each car. He said, ‘Well, I’ll he around in the morning. I think I can raise the balance of it.’ As I started away, he said, ‘I’m going to buy you a good hat.’ I said, ‘Don’t do that; I don’t expect that of you.’ He said, ‘If I want to do it, it ought to he all right.’ So he came in the next day and fixed up the loan.' There was nothing said about any brokerage or bonus of any kind, and Mr. Severson fixed up the loan, and, a day or two after that, I went home one afternoon and there was a package there from the Hub Clothing Company. I opened it. It contained a hat. Inside was a ticket, ‘Compliments of Claud Hollan.’ ” The above is the testimony verbatim from the record concerning the first and fifth loans. It presents a sharp conflict between appellant and Walker. While the testimony of appellant tends to prove that Walker received the $50 and the hat as a commission or bonus paid him as inducements for, or in consideration of, making’ the loans in addition to the 8 per cent, interest, the testimony of Walker flatly contradicts this and tends to prove that these bonuses were not in the nature of commissions paid him for making the loan, and did not enter into the consideration for the loan, and were not exacted or charged by him as a prerequisite to the loan, but, on the contrary, that they were tendered to, and accepted bjq him as mere personal gratuities from Hollan after the loans were consummated. We have often ruled that the burden is upon the party who pleads usury to clearly prove it. Jones v. Phillippe, 135 Ark. 578, and cases there cited; Briant v. Carl-Lee Bros., 158 Ark. 62. The appellant fails to establish the necessary facts to constitute usury in the first and fifth loans, since he does not show, by a clear preponderance of the evidence, that the alleged bonuses were received by Walker as a part of the consideration for making these loans. 2. The undisputed testimony shows that on the second, third and fourth loans the appellee, through its officers and agents, by agreement with .appellant, charged and collected of him, in addition to the 8 per cent, interest, a brokerage of one per cent, on the principal of the. loans. The notes evidencing these loans were payable in “thirty days after date, without defalcation,” etc. Ap-pellee concedes that this brokerage, in addition to the 8 per cent, interest, would render all these notes usurious, if the contracts were that same were to be paid in thirty days. But it contends that it was not in contemplation of the parties, at the time the notes were executed, that the same were to be paid within thirty days. The appellee was permitted, over the objection of the appellant, to introduce testimony which tended to prove that the notes were to be paid out of the proceeds of the sales of cars as the same were sold, and that until the cars were sold the notes would be renewed or extended indefinitely until that time; that it was understood between appellant and the appellee that the rate of interest would be 8 per cent, for the originals and renewals. That it was understood by Walker and the other officials of the bank that, when the appellee went into the business of financing automobile dealers, it would charge them at the rate of 8 per cent, per annum on short time paper; that the making of the original notes and renewals thereof for thirty days was for the convenience of the appellant, so that in case he sold a car within that time he would not have to pay interest for a longer period. The appellant testified that there was no agreement that the notes were to run longer than thirty days. When he renewed them, he got more time. The original notes fixed their own maturity. There was no assurance to him that any renewals would ever be made. He just took a chance on paying out the notes by selling off the autos. He never knew in any instance how long it would take to sell them and pay the notes, but figured he could do it inside of thirty days. He did pay off the larger part of each note within that time. He also further testified concerning the renewal of notes as follows: “It has been said that it was customary to renew these loans. Mr. Walker whs the man I always did business with. He was out of town when a note came due, and Mr. Rightsell stated positively, ‘When this is signed for thirty days, it is thirty days; and it is with us whether we renew it or not. You will have to pay this note off.’ I told him to wait until Mr. Walker got back, and he said, ‘No, something will have to be done about it right away.’ I paid part of the note and then renewed it.” And fur-' ther: “When they refused to renew the note, I went to Mr. Rightsell. He knew what the custom of the bank was. He told me that when a note is made for thirty days that is when it is due. ‘We want this note paid.’ I mentioned Mr. Walker. Mr.- Rightsell said, ‘Mr. Walker nothing, I am handling it now. I want the note paid. I am handling the note.’ ” And further in his testimony he said: “I went to Keatts, the note teller, and he said, ‘We can’t renew this note, because Mr. Walker left instructions to pay it off.’ I could do nothing else about it, so I had to see some official of the bank, and I saw Mr. Rightsell. * * * Renewals didn’t come as a matter of course. Walker would tell the note teller when he didn’t want anything renewed or when he did want it. Sometimes it would be one way and sometimes another.” Keatts testified, among other things, that he was the note teller of the bank. The old original notes and extended notes passed into his hands about June 5, 2920. He saw they were bearing 8 per cent, interest. He jumped to 10 per cent., knowing that he was changing the rate. He could not say that any of these notes were hearing 10 per cent, when he began renewing them. He took renewals because the government required that they be stamped each time they were extended. His intention was to collect 10 per cent, every month. * * * When he began taking renewals, he did it oh his own initiative, and advanced the rate to 10 per cent. It was customary for him to have Walker O. K. the renewals, but he had no instructions from him to raise the rate. He presented the notes to’ Walker as renewals, and Walker merely O. K’d them. Walker testified, in regard to this, that when his bank was consolidated with the appellee, Keatts, the note teller, took charge of the renewals, of these notes. Nothing was ever said to him one way or another about what rate appellant was doing business on. Keatts did not raise the rate, of interest on Walker’s direction or instruction. It was an error of his in doing that. A note clerk in no case is supposed to change the rate of interest on renewals without authority. Appellant would give his note for these loans running thirty days, and the rate of interest was 8 per cent. The notes were made to mature in thirty days, so that he could pay them oif by making the sales of the cars with as little interest as possible. Appellee notified him when the note fell due, and, if the cars were still unsold, appellee would excena for another thirty days at the same rate of interest. All renewals were supposed to be at the same rate. Borne of the cars are yet unsold. Now, conceding- that the above testimony was competent and relevant to the issue of whether or not it was the intention of the appellee to charge usurious interest, we are nevertheless convinced that the clear preponderance of the evidence shows that such was its intention. The appellee can act only through its officers, and is bound by their acts in the premises. Appellee, through its officers, received of the appellant a brokerage of one per cent, on the principal of the loans in addition to the interest of 8 per cent, per annum, under a contract which on its face absolutely bound the appellant to pay the principal of the loan in thirty days. The payment of the brokerage of one per cent, was not based upon a contingency. It was taken out at the time the loan was made. Nor was the time for the payment of the notes based upon any contingency within the option or control of the appellant. Whether or -not the notes would be extended or renewed when due at the end of thirty days was a matter that was wholly optional with the appel-lee. Extension or renewal of the notes at the end of the thirty-day period was not within the terms of the contract and binding upon the appellee. Appellant could not enforce such extension or renewal as a matter of right under the contract, if he had not sold autos at the end of the thirty-day period, but he had to appeal to the appellee for such extension or renewal as a matter of grace and favor. The appellant testified that such was the interpretation of the contracts by the officers of the bank. On one occasion, when' he sought to have a note renewed, Rightsell stated that when a note was signed for thirty days it meant thirty days, and it was with the appellee whether it would renew it or not. ■ It is significant that none of the officers of the hank denied appellant’s testimony in this respect, or asserted that appellant could have demanded an extension or renewal of the notes at the end of thirty days as a matter of right. Therefore, wé cannot agree with learned counsel for the appellee that the notes in question evidenced loans which in reality were to be paid only as cars were sold, and which were therefore made for an indefinite duration of time. As we view the oral testimony, in connection with the written contract, wq conclude that a clear preponderance of the evidence proves the intention of the appellee to charge the appellant interest at the rate of 8 per cent, per annum, and one per cent, brokerage in addition thereto, on notes payable in thirty days, but which at the end of that time, at the option of the ap-pellee, might be extended to such a time that the 8 per cent, interest and one per cent, brokerage would not exceed the lawful rate of 10 per cent, per annum. In other words, the so-called contingency for the duration of the time of payment invoked by appellee to relieve the transaction-of usury was left entirely to the appellee. The law does not tolerate a contract of that kind. The author, on the Usury chapter in 39 Cyc., p. 951, correctly declares the law as follows: “When the lender stipulates for the absolute repayment of principal and interest at the highest legal rate, and for a further profit payable upon a contingency not under the control of the borrower, the contract is usurious. Furthermore, even the chance of the lender’s receiving excessive profit under the transaction or arrangement is more than the lender is legally entitled to require. * * * A forti-ori is the contract usurious when the contingency under which the excessive interest is payable is under the control of the lender.” It could hardly be asserted, even with plausibility, that the notes in question were not to be paid at all unless, or until, the appellant sold the cars. If the payment of the brokerage had been bottomed upon a contingency of that sort, the transactions would be relieved of usury, because tliat might not happen at all, or it might not happen within -a period short enough to render the one per cent, brokerage plus the 8 per cent, interest in excess of the rate of 10 per cent, per annum. The payment of the interest and brokerage ' is not based upon any such contingency as that. On the contrary, the notes in question were made payable in thirty days without defalcation. And the mortgages to secure the same are subject to foreclosure upon the failure of the appellant to pay the notes within the thirty days. Foreclosure is not contingent upon appellant’s failure to sell an automobile within thirty days, or in any other given time. There is in these loans no element of uncertainty, either as to the time when the notes were to be paid or as to the rate of interest and brokerage to be paid. In other words, there is in these transactions no element of uncertainty or hazard “that seems to exclude the idea of a loan of money at a usurious rate of interest.” . The eases of Reeves v. Ladies’ Bldg. & Loan Assn., 56 Ark. 335, Farmers’ Savings & Bldg. & Loan Assn. v. Ferguson, 69 Ark. 352, and Briant v. Carl-Lee Bros., 158 Ark. 62, upon which the appellee relies to sustain its contention on this point, are not applicable to the facts of this record. The fact that the original notes were partially paid, and that the balance due thereon is evidenced by renewal notes which are the foundation of this action, does not free such renewal notes from usury. The law is well settled that a contract is itself usurious which is executed in renewal of a usurious contract. “Where the original obligation is usurious, the taint attaches to all consecutive obligations or securities growing out of the original usurious transaction, and none of the descend-' ant obligations, however remote, is free from it if the descent can be traced. ’ ’ See note 2 to Person v. Mattson, 1918 Ann. Cas., p. 755, and numerous cases there cited. 27 R. C. L. p. 251, sec. 54; 39 Cyc p. 1003. See Pickett v. Merchants’ National Bank, 32 Ark. 346. We conclude, for the reasons stated, that the second, third and fourth loans are void for usury, and the chancery court erred in pot so holding. 3. The appellant does not contend that the notes of May 4, 1921, evidencing the sixth loan, were usurious. The decree of the chancery court as to the first, fifth and sixth loans is therefore correct,.and is in all things affirmed. As to the second, third and fourth loans, for the error indicated, the decree is reversed and the cause will be remanded, with directions to enter a decree declaring such loans null and void, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.

McCulloch, C. J. Appellee’s intestate, John Dawson, came to his death on or about June 20, 1921, near the city of Helena, in Phillips County, where lie resided. He lived on a houseboat, and his partially decomposed body was found in the boat. Letters of administration on the estate were, issued to appellee by the probate court of Phillips County, and appellant, claiming to be the widow of said decedent, presented her petition for allotment of dower and for other allowances authorized by statute for the benefit of a widow. The probate court denied the claim of dower and other allowances, and, on appeal to the circuit court, a judgment was rendered there, denying appellant’s claim. The case was heard in the circuit court on an agreed statement of facts, from which it appears that appellant and John Dawson intermarried in the year 1902 and lived together as husband and wife until Anril, 1917, when they separated, and an-pellant took up her residence in the city of Tuttle Rock. In April, 1921, appellant ¡nsl.ilulod i.11 ihc chancery court of Pulaski Gpunty an action against said decedent, John Dawson, to' procure a decree for divorce on the ground of desertion. Dawson was summoned, but made default, and the chancery court rendered a decree in appellant’s favor on May 19, 1921, dissolving the bonds of matrimony. The decree contained a formal recital to the effect that “all property not disposed of at the commencement of this action, which either party hereto obtained from or through the other during the marriage, hereby annulled, and in consideration or by reason thereof, he restored to them, respectively,” and that “the court doth retain control of this cause for such further orders and proceedings as may be necessary to ascertain definitely, and enforce, the rights of the parties hereto in the property herein referred to.” There was no reference in the decree to an allowance of alimony or an allowance in lieu of dower. The partially decomposed body of John Dawson was found, as before stated, in his houseboat in Phillips County, and the agreed statement of facts recites that Dawson came to his death on or about June 20, 1921. . There were no children of the intermarriage between John Dawson and appellant, and she claims one-half of the estate as dower. On August 3, 1921, appellant filed in the Pulaski Chancery Court her petition asking -that the decree of divorce theretofore entered be set aside and the action dismissed. It was alleged that decedent left his -mother as his only heir at law, who was a nonresident, and a warning order was issued and published warning her to appear in the proceeding. The ground set forth in the petition to set aside the decree was that the body of decedent was so decomposed at the time it was discovered that it was impossible to determine whether or not he was dead at the time the divorce decree was rendered. The court heard the petition on September 28, 1921, which was during the same term of court at which the original divorce decree was granted, and entered an order setting aside and vacating the decree for divorce and permitting the plaintiff (appellant) to take a nonsuit. Appellant thereupon filed her petition, as before stated, in the Phillips Circuit Court. We'are of the opinion that the probate court, and the circuit court on appeal, were correct in denying appellant’s claim that she was the widow and entitled to dower in the estate of John Dawson. A divorced wife is not entitled to dower. Wood v. Wood, 59 Ark. 441; Kendall v. Crenshaw, 116 Ark. 427; Gwynn v. Rush, 143 Ark. 4. There was no application in the divorce proceeding for an allotment of property in lieu of dower pursuant to statute (Crawford & Moses’ Digest, § 3511), and the court rendered no decree on that subject. The formal reservation was with reference to separate property, and there was none shown to have been owned by appellant. Such an allowance in lieu of dower must be made in the divorce proceeding, and cannot be made in a subsequent proceeding. Taylor v. Taylor, 153 Ark. 206. It appears from the record that the parties were divorced by a valid decree, which could not be vacated at the instance and request of the party who obtained it, after the death of the other party. The prevailing rule of law on this subject is Stated as follows: - “The doctrine followed with practical unanimity is that a party who has obtained a divorce is precluded from disregarding it and attempting, by further proceedings, to gain the same or different relief, on the principle, mainly, that the first divorce must be held to dissolve the relation of husband and wife, and also on the ground that a person who had invoked the jurisdiction of a court may not disregard or attack the decision.” Note (p. 301) to case of Karren v. Karren, 60 L. R. A. 294. A court of record has inherent power to set aside its own judgments or decrees during the term at which the same were rendered, but a party to an action who has obtained such a decree may not be in a situation to ask for or to receive the benefit of the annulment of the former judgment or decree, and such is the present case, for the plaintiff, by her own voluntary act, procured a decree for divorce, and, after the death of her husband, she cannot change her own status with reference to her former husband by causing the decree to be set aside and her status as wife reestablished. The question involved is not one of the power of the court, but as to the right of appellant to thus change her status after the death of her former husband from whom she had secured a decree for divorce. The judgment is therefore affirmed.

Wood, J. The appellant was indicted for the crime of murder in the first degree in the alleged killing of his wife, Cora Sneed, by poison. This is the second appeal in this case. Sneed v. State, 143 Ark. 178. Both trials resulted in a verdict of murder in the first degree, fixing’ the punishment at imprisonment for life. The appellant contends that the judgment from which this appeal eomes should he reversed upon the following grounds: • 1. That the evidence is not legally sufficient to sustain the verdict. 2. Alleged misconduct of the trial judge. 3. Errors in excluding evidence offered by appellant and in refusing to exclude evidence of the State. 4. Errors in granting and refusing prayers for instructions. 5. Errors in refusing to sustain objection to improper argument and in making improper comment on the objection. We will dispose of these in the order mentioned. First: Counsel for the State, after making certain additions to the abstract of appellant, begin their brief by saying: “The evidence is so complete and conclusive of Sneed’s guilt that there is no room for doubt in the mind of any impartial man.” Counsel for the appellant, after stating the effect of the evidence as contained in their abstract, say: “The more rational view of the evidence is that she (Mrs. Sneed) did not die from the effects of strychnine poisoning, but that the cause of her death, so far as her doctors are concerned, and so far as the evidence shows, was unknown.” Since there is this wide divergence of view by opposing counsel as to the effect of the evidence, we have thought it necessary to read the record of the evidence for ourselves, and, after having done so, our conclusion is that the evidence was legally sufficient to sustain the verdict. The record of the evidence covers more than six hundred pages of the transcript. Hence we can only give a synopsis of it. The testimony adduced for the State tended to prove that about the 18th of'August, 1919, Cora L. Sneed became ill, as she supposed, from a cold contracted during her menstrual period. After doctoring herself a few days with a ‘ ‘ round of calomel, ’ ’ on Friday, the 22nd of August, she was seized with violent convulsions. The appellant sent for neighbors. When they arrived, they urged him to send for physicians, and he replied that he had sent for Dr. Bone, his family physician, who lived twelve miles distant. Other doctors lived in the city near by, and were not immediately called. Finally Dr. Walker was called early in the morning. He administered chloroform and morphine until the convulsions subsided, and left at nine o’clock. Dr. Bone arrived about 10:30 a. m. Dr. Walker returned about 11 o’clock, and they concluded that Mrs. Sneed was ill from the effects of severe constipation, and treated her for that. Among other things prescribed for her they left from twelve to seventeen thirtieth-grain .strychnine tablets, to be given every three or four hours, as needed, to quiet her nerves. On the Sunday night following she was seized with similar convulsions to those had on Friday. The family physician was not notified of this attack. Will Jinks, a brother of Mrs. Sneed, who was not on friendly terms with appellant and Mrs. Sneed, heard of her illness, and went to her home. He suspected that Sneed might be poisoning his sister, and suggested that another doctor be called, which' was done, arid this physician, in connection with the family physician, continued the treatment for “locked bowels.” On Sunday night Dr. Lutterloh was called in. He and Dr. Bone continued the same treatment. Dr: Lutteriloh left three sixtieth-grain strychnine tablets to be taken, and some other medicine. At the suggestion of Dr. Lutterloh, Dr. Altman was also called. On Monday Mrs. Sneed had other convulsions of a lighter character, but by Wednesday she was greatly improved and considered ont of danger. After this spell she became apparently well, except that she was weakened as the result of her recent illness. During the latter part of this illness Dr. Bone had prescribed for her nervousness potassium bromide and strychnine injections when needed. About four weeks from the time the illness just mentioned began, two little girls were at Sneed’s home. Mrs. Sneed- was looking after the laundry. Sneed came into the room where his wife was, and in a playful spirit jumped and boohed at her. She became nervous, and lay down on the bed. Sneed went out to play ball with a child, and returned in a short while. He went into the kitchen and returned with two glasses of medicine with about three-fourths of an inch of liquid in each glass, one a brown color and the other white, and gave the same to his wife. This was about eight o’clock. About an hour thereafter Mrs. Sneed was again in violent convulsions of the same type that she had had on the former occasions. Neighbors were called, and insisted on appellant calling a doctor rather than to wait for Dr. Bone, whom Sneed had already called. During this last attack Mrs. Sneed said, “Get a doctor quick, but don’t touch me.” The appellant didn’t call for a doctor in town, and refused to permit one to come until the family physician arrived. Dr. Bone came about 10:30; He called in Dr. Ratcliff. Mrs. Sneed had been in convulsions about two and a half hours when Dr. Bone came, and she died at 11 o’clock. While Mrs. Sneed was in convulsions on the night of her death, appellant administered hypodermically one-sixtieth grain of strychnine at an interval of an hour, dividing it into two doses. During the convulsions Mrs. Sneed was perfectly rational. When the convulsions would subside she would say “I am going to have another spell,” and would 'beg them not to let her have any more. She told the neighbors that she knew what was going on and knew they were sympathizing with her, but she could not speak. Medical experts testified that consciousness during convulsions was never present in any other ailment except lockjaw (tetanus). Mrs. Sneed did not have lockjaw. The character of the, convulsions was described before the jury as follows: Rigid condition of the body, head drawn back and lieels drawn taut against the bed; toes turned out, extremely rigid; fingers drawn and clinched like bird-claws; eyes glassy and staring, and the corners of the mouth contracted, giving the face a meaningless grin. After death there were livid or purple splotches on her neck and face and other parts of her body, characteristic of strychnine poisoning. None of the doctors who attended Mrs. Sneed during her last illness had ever been called before to treat a case of strychnine poisoning, and those of them who witnessed her during her convulsions did not suspect at the time that she had been poisoned, but all of them testified that the convulsions described were typical of strychnine poisoning as defined by the best medical authorities; and, in answer to hypothetical questions describing the convulsions of Mrs. Sneed, several of the experts testified that, in their opinion, the death of Mrs. Sneed was the result of poisoning by strychnine. Portions of the body of Mrs. Sneed were subjected to chemical analysis, according to the most approved methods, and the chemist ascertained that the portions of. the body examined contained what he estimated to be one-tenth of a grain of strychnine, and the whole 'body would contain, according to correct standards of estimate and measurement, as much as one grain, which, the expert showed, would be sufficient to kill. The chemist and other experts testified that a grain was a deadly dose of strychnine; that where it is given in medicinal doses every three or four hours in thirtieth or sixtieth grains it was not possible, for it to accumulate in a quantity large enough to produce death; that- strychnine does not accumulate, and is rapidly eliminated from the body; that a half, and even a quarter, of a grain had been known to kill. About seven days before the death of Mrs. Sneed the appellant asked a druggest in Jonesboro if he had thirtieth-grain hypodermic strychnine tablets. The druggist did not have the hypodermic tablets, but sold Sneed one hundred thirtieth-grain triturates — tablets to be taken internally. Sneed and his wife had no living children. There was testimony for the State tending to prove that Mrs. Sneed had inherited considerable property from her mother, Mrs. Jinks, but they had practically spent it all at the time of Mrs. Sneed’s death. Mrs. Sneed had made a will devising all of her property to her husband. At the time of her death Mrs. Sneed had life insurance policies amounting to $5,000 in which the appellant, her husband, was the beneficiary. During the night after the death of Mrs. Sneed appellant was drinking, and also on the following night. He knew, or suspected from what he had seen, that an inquest and a probable autopsy would be held on the body of his wife. He told one of the neighbors that he had had three specialists at his home to examine Mrs. Sneed, and had their certificates showing that she was afflicted with goiter. He referred to the anticipated inquest and autopsy, and drew his hand across his throat saying, “It means this for me.” On the night while the undertaker was embalming the body Sneed asked one of his neighbors to request the undertaker to save the blood of his wife, that he wanted the same for his protection in the event of trouble. He asked one of the members of the coroner’s jury to take a drink with him, and another person also, displaying two pint bottles of liquor. He exhibited a pistol, and abused one of his neighbors (who had invited Jinks, his 'brother-in-law, home for supper after the death of Mrs. Sneed), for not telling appellant about the coroner’s jury and for entertaining Jinks. He stated that if the coroner’s inquest were held and investigation made, “It will mean this for me,” drawing Ms band across Ms throat. After the coroner’s jury arrived, Sneed, while “pretty drunk,” came to the door of the room and said: “Look her over, look her over good, strip her off and look her over.” The appellant adduced testimony which tended to prove that the most tender and affectionate relations had always existed between himself and his wife from the time of their marriage down to the hour of her death. Upon her death he manifested the grief that was usual and natural for one who had lost a beloved companion. The testimony tended to prove that Mrs. Sneed had goiter. According to his family physician, appellant, after he had been drinking, and when he had eaten certain sweets, was afflicted with indigestion, and the doctor had prescribed strychnine, and he had been taking same regularly for his ailment. Experts in appellant’s behalf, in answer to hypothetical questions, testified that it could not be stated with any degree of certainty whether the amount of strychnine found in the remains of Mrs. Sneed was due to an overdose, or to an accumulation of strychnine. One of the experts, an experienced bacteriologist, testified that in making a chemical analysis, such as was shown on behalf- of the State, unless an exceedingly large amount should be found he doubted whether one would be justified in .saying positively that death resulted from an overdose of strychnine. The appellant, in his testimony, admitted that he had purchased strychnine from the druggist a short time before his wife’s death, but stated it was for his own use, as he was accustomed to taking it. He admitted that he had administered strychnine after she -became ill, but stated that he did so under the doctor’s directions. He denied that he had given her any strychnine otherwise. He explained that, as to the two doses given from the two glasses on the night of her death, the brown dose was potassium bromide and the white was buttermilk. He admitted that he made the statements attributed to him in regard to the coroner’s inquest, to-wit, “It will mean this for me,” drawing his hand across his throat, but stated that he meant it in a different sense from the way it had been construed. He denied the unseemly conduct attributed to him by the witnesses in regard to the examination of his wife’s body. Other witnesses also in his behalf testified that he did not say, in the presence of the coroner’s jury, “There she is, gentlemen, strip her off and take a look at her. ’ ’ Appellant and other witnesses in his behalf also denied the other unseemly conduct attributed to him, soon after the death of his wife-, by witnesses on behalf of the.State. Appellant stated that his wife had 'been ill with goiter, and that he had specialists to examine and treat her, and that she had not been a well woman for a long time before her death. He detailed fully to the jury what he did in waiting upon his wife during her last illness. Among other things, he stated that he did not give his wife anything to kill her, and would not have done so. He loved her devotedly, and nothing had ever occurred during their married life to estrange them. While there was much more testimony, it would unduly extend this opinion to further set it forth. The above are the salient facts which the testimony for the State and the appellant tended to prove. Now, we cannot agree’ with learned counsel for the appellant that the “more rational view of the evidence” is that Mrs. Sneed died from natural causes, brought about by disease rather than from strychnine poisoning. On the contrary, it occurs to ns that the more reasonable view is that her death was the result of being poisoned by strychnine. Mrs. Sneed died in convulsions, which, according to the undisputed- evidence, were typical of strychnine poison, and not typical of goiter or any other disease save tetanus, and she did not have tetanus. The jury might have found that the condition of her body after death indicated that she had been poisoned by strychnine, and that strychnine in a deadly quantity was found in her remains. But counsel for appellant, in oral argument, strenuously urged that, even if this were true, still there was no testimony to prove that the strychnine which whs found in her body and which caused her death was the result of an overdose administered intentionally by the appellant, rather than the effect of an accumulation from medicinal doses administered to her under the directions of the doctor during her last illness. Counsel are not correct in this contention, because the jury might have found, from the testimony of the chemist and other experts, that the amount of strych'nine found in Mrs. Sneed’s body after death could not have been the result of medicinal doses; that it would have been impossible, under the conditions that existed from the time she first became ill until her death, for medicinal doses of strychnine, given as directed by attending phyicians, to have accumulated in an amount sufficient to cause her death. If, as the jury found, the death of Mrs. Sneed was the result of strychnine poison, then the jury were justified in finding that the appellant administered same in a deadly quantity. The proof shows that the doctor had instructed him how to administer it hypodermically. Sneed therefore had the means and the opportunity of killing his wife. But counsel insist that his coursé of conduct throughout his wife’s illness and their married life was entirely inconsistent with his guilt. In other words, the effect of the argument is that there was no motive for the killing. The State contends that the motive was to obtain life insurance money on policies insuring the life of Mrs. Sneed in which appellant was named as the beneficiary. While it is competent to prove the presence or absence of motive in determining the issue of guilt or innocence, and while such proof always is a cogent factor relative to that issue, yet if the testimony be otherwise legally sufficient to prove guilt, a verdict of guilty cannot be set aside because of failure to prove a motive for the crime. Ince v. State, 77 Ark. 418; Scott v. State, 109 Ark. 391; 2 Wharton on Circum. Ev., 1646, § 878. This is a wise rule of law. It is sometimes impossible to penetrate the human mind and discover any motive whatever for the most enormous crimes. Motives that influence the will and impel the commission of horrible crimes may be, and often are, as unfathomable as Erebus.. Nevertheless, upon the plainest principles of reason and justice essential to the common security of society as a whole, the criminal actor, when found, must be punished, whether any motive for his act can be proved or not. Learned counsel for appellant in their oral argument stressed the testimony proving the tender and affectionate conduct of appellant and his wife toward each other throughout their married life, and rely upon presumptions of fact which, nature and the law attach to such conduct as forbidding the possibility of appellant’s guilt under the evidence in this record 2 Wharton, Cr. Ev., p. 1653, § 881. But it cannot be said, as a matter of law, that, because of the sacred relation of husband and wife, and because witnesses testified that they manifested unusual affection for each other, therefore appellant could not and did not kill his wife under the circumstances disclosed by the evidence. For, notwithstanding the relation of husband and wife and the natural presumption of affection between them growing out of it, it is nevertheless true, as stated by Mr. Burrill, that “in particular cases, too numerous, unhappily, for the credit .of humanity, these affections have been found to interpose no sort of bar to the gratification of either the gainful or revengeful impulse to murder; or, to speak with more precision, that the affections presumed from the relations of the parties have not, in fact, existed.” Burrill on Circum. Ev., p. 322; see also Wills on Circumstantial Ev., 43-44. Second: Under the head of the misconduct of the trial judge, showing his bias and prejudice against the defendant, counsel contend that the court erred in making certain comments while excluding the offered testi mony of witnesses, Mr®. Hay and Cole. ■ This assignment of error is not made one of the grounds of the motions for a new trial, and we therefore oannot notice it. Counsel 'objected also to certain comments of the court in excluding certain portions of the will of Mrs. Sneed, which appellant offered in evidence. The record shows that, when the will was offered, the State objected to certain portions of it, and in making its ruling the court sustained the objection and gave the reason for such ruling, “to which ruling- the defendant at the time excepted and asked that his exception be noted of record, which was accordingly done. ” It appears that after the above ruling, the State withdrew its objection to the introduction of the entire will, and the same was read to the jury. It does not appear that appellant objected specifically to any remarks of the court that were made in excluding a portion of the will. The objection was to the ruling of the court in excluding any portion of the will and not to the remarks made by the court. Furthermore, we find that the remarks themselves could not be construed in any way as an expression of the court’s opinion on the merits of the case, and were not prejudicial to appellant. Under this head, as one of the grounds of the motion for a new trial, the appellant sets up that one Dr. W. F. Jinks, an uncle of the deceased, sat by the trial judge while the trial was in progress and held frequent whispered conversations with him during the taking of testimony; that the conduct of the judge could easily be observed by the jury, and was observed by various persons in the audience, who made frequent remarks concerning same. Appellant also alleged that the presiding judge held frequent conversations with Will Jinks, brother of the deceased, during the taking of the testimony in the presence of the jury. This ground was supported by the. affidavits of three persons, who stated therein that they were present during the progress of the trial and observed the conduct of the judge as above set forth. “Impartiality,” says Justinian, “is the life of justice.” With this thought in mind, the framers of our Constitution provided “that judg*es shall not charge juries with regard to matters of fact, hut shall declare the law.” This provision was intended to prevent trial judges from expressing any opinion on the merits of the issues of fact pending. Issues of fact under our juridical system, are for the jury. It certainly violates the spirit of the Constitution, if not the letter, for a trial judge, by any conduct of his, to' indicate to the jury what his own convictions are as to the merits of the case. As the presiding genius of the proceedings, the trial judge should hold the .aegis of the law with firm and impartial hand over the rights of all litigants. He should scrupulously avoid manifesting, by act or word, any fear of, or any bias for or against, any one connected with the cause. Unless he does so, the jury will be impressed with his personal feelings or convictions in the matter they are to determine. See Tharp v. State, 51 Ark. 147, 155-6. If -it were established that the trial judge was guilty of the conduct attributed to him, we would not hesitate to reverse on account thereof, because such conduct necessarily would be fraught with great prejudice to the accused. But no exceptions were saved to the alleged misconduct of the trial judge at that time, nor at .any time before the verdict. If objection had been made and hi® attention directed to the alleged misconduct of which appellant now complains, the trial judge might have instructed the jury so as to inform them that he had no opinion whatever on the merits of the cause. He at least should have been given that opportunity. It would not do to set aside the verdicts of juries on account of the alleged misconduct of trial judges upon the mere affidavits of on-lookers, especially when such affidavits are controverted in all essential particulars, as they are here. See Pendergrass v. State, 157 Ark. 364. There is no reversible error when the trial court finds, upon conflicting affidavits, as it does here, that there is ‘‘no merit and substantially no trnth in the affidavits with reference to Dr. W. F. and W. H. Jinks and their treatment or association with the court during the trial, and that the statements contained in the affidavits of said W. F. and W. H. Jinks are true and correct.” Third: We find no prejudicial error in the ruling and remarks of the court with reference to the introduction of the will of Mrs. Sneed. During the cross-examination of appellant he was ■asked, over the objection of appellant, how many children he had by a former marriage, and answered, “Two.” He was then asked where they were, and answered that he did not know — that they were with their mother’s people. Their grandfather adopted them into his family. It had been developed, on cross-examination, without’ objection, that Sneed was born in Illinois, had lived in Kentucky, had been twice married before, that his first wife had died, and he had obtained a divorce from his second wife; that he had come to Arkansas from Kentucky under an indictment, and went for a time under an assumed name in this State. It was while his former history was thus being traced, as testing his credibility, that the above questions were asked. The testimony was relevant in the connection in which it was elicited. Hollingsworth v. State, 146 Ark. 387; Hunt v. State, 114 Ark. 239-243; Pearrow v. State, 146 Ark. 201-206. But, even if it could be said that the testimony was too remote to throw any lig'ht on the credibility of appellant, still there was nothing in the answers to the questions prejudicial to him. Fourth: The court did not err in refusing to give appellant’s prayer for instruction No. 14. The instruction was argumentative in form. ¡Besides, it was fully covered in 'correct instructions which the court gave on the subjects of reasonable doubt and circumstantial evidence. After the conclusion of the argument the court told the jury ‘ ‘ that the former trial of this case and the result of it is not to be considered by you in deliberating upon your verdict for any purpose whatever, and it has no effect upon this case, except the one which the law gives it, which was to the effect that, if the jury should, find the defendant guilty of murder in the first degree, they could only fix his punishment at imprisonment in the State Penitentiary for ¡life.” The appellant objected to the instruction on the ground that “the jury must not consider the former verdict for any purpose, as it has no weight as evidence in the case.” There was no error in the instruction, and it was a proper one to give. Eeferences to the former trial had been made throughout this trial, during the selection of the jury, the opening statement of counsel, the taking of testimony, and the arguments of counsel before the cause wás finally submitted. The instruction therefore was proper, and, if any prejudice had been lodged in the minds of the jury by these references, this instruction had the effect to remove it. The instruction was tantamount to telling the jury that they could not consider the former trial or verdict as evidence in the canse, and thus fully met appellant’s objection in this respect. The effect of the instruction was to tell the jury that, as appellant had once been put upon trial for murder in the first degree and the punishment in that case fixed at life imprisonment, if they should return a verdict of guilty they could not punish him by death. It was proper for the court to instruct the jury as to the form of its verdict and as to-the punishment, in case they should return a verdict of guilty, so that they might not be misled and possibly return a verdict in a form that would result in a mistrial because of former jeopardy. Article 2, § 8, Const.; Johnson v. State, 29 Ark. 31; Stewart v. State, 13 Ark. 720; State v. Clark, 32 Ark. 231. Fifth: The eighth ground of appellant’s motion for a new trial is as follows: “During the closing argument in said cause, and while said closing argument was being made by Honorable N. F. Lamb, attorney for the State, said .attorney stated, in substance, that the jury should not give to the evidence of Sneed any weight; that Sneed had been convicted of this crime by one jury and sentenced to the penitentiary for life, and that the jury should not believe his testimony in preference.to that of other witnesses; to which remark counsel for defendant at the time objected as improper, and asked the court to instruct the jury not to consider the fact that said Sneed had been convicted of the crime of murder in the first degree and sentenced by a jury to the penitentiary for life in the former trial, and to exclude it from their consideration, which objection was overruled by.the court, and said request denied.” In support of this ground appellant presented the affidavit of Judge Dudley, one of appellant’s counsel, who states therein, among other things, that he was present during the closing argument of Mr. Lamb, employed counsel for the State; that in commenting upon the testimony of the witnesses Mr. Lamb stated as follows: “He (appellant) had been convicted of this crime by one jury and sentenced to the penitentiary for life, and that this jury should not believe his testimony in preference to that of other witnesses.” Judge Dudley states that he arose and objected to the argument as improper; that he called the attention of the-court and Mr. Lamb to the fact that the stenographer was absent, and he wanted no controversy or misunderstanding about what took place, and requested them to remember what transpired in order that it might be reduced to writing and incorporated in the bill of exceptions; that he asked the court to instruct the jury not to consider Mr. Lamb’s statement for any purpose, and to exclude it from the consideration of the jury, which the court refused to do, and remarked, “Let the record show the objections and the opening statement of Judge Gautney,” to which he (Judge Dudley) at the time excepted; that on the following morning he (Dudley) reduced to writing the objectionable remark made by Mr. Lamb and his request to the court, and the court’s refusal to act. He then went immediately to the courthouse and found Judge Johnson on the bench, but court had not convened. He told Judge Johnson that he had reduced to writing what had transpired the night before with reference to Lamb’s argument, and gave him the same, and also a copy to Mr. Lamb before the jury was sent out to consider its verdict. The court took no other action with reference to it. The court did not remark, at the time the affiant 'objected to the remarks of Mr. Lamb, that “such remarks were permissible only on account of the statement and ¡remark of Judge Gautney, and that the jury would not consider said former verdict for any purpose.” The appellant also presented t'he affidavits of H. L. Phelps and Claude B. Brinton, who stated that they were present in court during the closing argument for the State by Mr. Lamb, and that in his argument he stated to the jurv that Sneed w>as a convict and ought not to be believed by the jury, for he had been convicted of this crime before by a jury and sentenced to the penitentiary for life; that at the time Judge Dudley arose and objected to the remark, and .asked the court to tell the jury not to consider it; that the court overruled his objection, and the argument went on. These two affi-ants stated that they were not related to the appellant or to any one connected with the lawsuit, and had no connection with the cause. The State, in rebuttal, presented the affidavits of Mr. Lamb and Prosecuting Attorney Shane. Among other things, Mr. Lamb stated, in substance, that he did not say to the jury at any stage of the argument that they should not give any weight to the evidence of Sneed, but did say to them that the evidence given by him stood practically alone and uncorroborated, and that if the jury wanted to believe Sneed instead of numerous other disinterested witnesses who contradicted him, it was their privilege to do so, but that he had testified with the sentence of punishment for life staring him in the face, and that, if the jury should believe him instead of numerous disinterested witnesses whose evidence contradicted him, we might as well abandon our courts; that, upon objection being made to these and other remarks by Judge Dudley, the court, in ruling upon the objection, stated to the jury at the time that the remarks of counsel were permissible only on account of the statements and arguments of Judge G-aut-ney, but the jury must not consider the former verdict for any purpose. Mr. b^ne, the prosecuting attorney, in his affidavit corroborated the statements of Mr. Lamb as to what occurred in connection with the matters mentioned in the eighth ground of the motion for a new trial. The record shows that the court, in overruling the motion for a new trial, among other things in connection with the eighth ground stated as follows: That N. P. Lamb made the closing argument in behalf of the State, and in so doing referred to said former conviction and punishment fixed, and explained to tlie jury why the State had not qualified them upon the subject oí the death penalty, said reference and explanation being ias set forth in said affidavits of Lamb and Shane; that .an objection was made by Judge Dudley to any reference by opposing counsel to said former verdict and punishment, and the court stated to the jury that such argument was only permissible on account of the statements made by Judge G-autney in both the opening and closing argument, and the purpose of such explanation, but should not be considered by the jury for any other purpose.” Now conceding, for the purpose of the opinion, that Mr. Lamb made the remarks above set forth, which are here challenged, the record proper does not show that any objection was made to the remarks at the time, nor that any exceptions were saved to any ruling of the court concerning same. It appears that the court’s order in overruling this ground of the motion for a new trial states as follows: “That an objection was made by Judge Dudley to any reference by opposing counsel to said former verdict and punishment,” etc. Even if this recital could be considered an exception as well as an objection, it does not reach to the remarks contained in the eighth ground of appellant’s motion for a new trial. The bill of exceptions signed by the trial judge does not show that any objection was made or exception saved to the remarks at the time they were made. There is no bill of exceptions by bvstanders showing that objections were made and exceptions saved to the remarks of Mr, Lamb. In his affidavit Judge Dudley does not say that the statement nrepared and presented by him to the judge the morning after the alleged argument occurred was intended as a bill of exceptions by bystanders and presented as such for .his acceptance or allowance. On the contrary, he savs that he was taking such precaution in order that the court and Mr. Lamb might remember what transpired, that same mig’ht be reduced to writing and incorporated in the bill of exceptions. Moreover, even if it could be said that it was intended by Judge Dudley as a bill of exceptions by bystanders, that statement is not brought into the record, and it is nowhere shown, either in the affidavit of Judge Dudley or other affidavits, that the exceptions were presented to the trial judge and rejected by him. This was absolutely essential. There was nothing in the bill of exceptions signed by the presiding judge identifying any affidavits as having been presented to him as a bill of exceptions and refused by him. Therefore we are bound to hold, unless we overrule many former decisions of this court, that there is no bill of exceptions, land that the appellant has not complied with the statute by presenting for our consideration a bill of exceptions containing the matters in the eighth ground of appellant’s motion for a new trial. A motion for a new trial and affidavits in support thereof cannot be used as a substitute for -a bill of exceptions to bring up for review matters that occurred during the progress of the trial. Secs. 1317, 18, 21, 22, C. & M. Digest. See Fordyce v. Jackson, 56 Ark. 563; Vaughan v. State, 57 Ark. 1; Ayer-Lord Tie Co. v. Greer, 87 Ark. 543; Cox v. Cooley, 88 Ark. 350; Pearson v. State, 119 Ark. 152. There is no reversible error in the record, and the judgment is therefore affirmed. Hakt and Smith, JJ., dissenting. Appellant’s request No. 14 was as follows: “14. If the evidence produced 'by the State is circumstantial, or there is no direct and positive evidence that a crime has been committed, or that defendant is guilty thereof, to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by the evidence 'beyond a reasonable doubt, and all facts necessary to such conclusion must be consistent with each other and with the main facts sought to be proved, and the circumstances taken together must be of such a conclusive nature as to induce in the minds of the jury the reasonable belief that the defendant is guilty beyond a reasonable doubt and must exclude every ither reasonable hypothesis save that of defendant’s guilt” (Rep.).

ROBERT J. GLADWIN, Chief Judge liOn September 30, 2013, the Desha County Circuit Court dismissed appellants’ complaint to set aside a sale and cancel a deed. On appeal appellants argue that they have standing to bring the suit and that they have alleged facts sufficient to state a cause of action. We affirm the circuit court’s order dismissing the complaint. Willie Morse Graham bequeathed 180 acres in Desha County, Arkansas, to her nine children. Her will stated that the bequeathed property was “to be considered family property 12and [could] only be sold by an agreement of all of [her] surviving children.” Six of the nine children requested a partition of the 180 acres in a 2005 lawsuit filed in Desha County Circuit Court (Graham 7), and three children objected to the partition action. Steven Arzo French was allowed to intervene in Graham I because he was the holder of a lease on the subject property. Graham I ended with the trial court finding that Willie Graham’s will provision violated the rule against unreasonable restraints at common law. However, the trial court found that the will’s terms were consistent with Arkansas Code Annotated section 18-60-413 (Repl. 2003) regarding partition, which should be strictly construed. Section 18-60-413 requires that no partition or sale of land devised by any last will and testament shall be made contrary to the intention of any testator. Thus, the trial court denied the partition complaint in Graham I as contrary to Willie Graham’s will. On August 17, 2012, appellant Howard Graham, the child of D.G. Graham, who was one of the nine children of Willie Graham, filed the complaint herein against appellees, the six heirs of Willie Graham who had sought partition in Graham I and Steven Arzo French. Appellants sought to set aside a sale and cancel a deed claiming that appellees had acted contrary to the order entered January 8, 2007, in Graham I by conveying through warranty deed to Steven Arzo French their undivided 8/9 interest in the 180 acres. Appellants sought cancellation of the deed as violative of Graham I. On October 18, 2012, appellees, grantors to the warranty deed, filed a motion to dismiss alleging that the complaint failed to state facts upon which relief could be granted ^pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2012). Appellees argued that the provision of Willie Morse Graham’s will at issue only prevents a sale unless consented to by “an agreement of all of my surviving children.” They claimed that the surviving children were named in the will. They argued that Howard Graham, plaintiff, was not a surviving child, but an heir to D.G. Graham, deceased child of Willie Graham. Therefore, they claim, Rule 12(b)(6) applied because Howard Graham had no standing to contest the deed he wanted to set aside. Further, appellees argued that even if Howard Graham could establish an ownership interest in the property, he would continue to enjoy his undivided share and any rights of co-tenancy that he ever had. Ap-pellees argued that the deed he wanted set aside did nothing to change the nature of his ownership interest. A judgment was filed on September 30, 2018, wherein the trial court considered-appellants’ contention that the grandchildren, or heirs of D.G. Graham, had to consent to the sale under the provisions of Willie Graham’s will. The trial court determined that the restriction on the right of alienability was given to her surviving children and that this power was personal to only those surviving children and not to other heirs. Next, the trial court considered Arkansas Code Annotated section 18-60-413 and determined that the statute limits petitions “under this act” to “any persons having any interest in, and desiring a division of, land held in joint tenancy, in common ...” The court found that there was no desire to divide land in the 2007 conveyance to French; instead, there was a conveyance of undivided shares. Thus, the trial court found no partition, as the conveyance was of the undivided interest of the heirs, except for D.G. Graham. D.G. Graham’s heirs retained their | respective undivided interests. Therefore, the trial court dismissed the complaint and amended complaint with prejudice. Appellants filed a timely notice of appeal, and this appeal followed. The proper standard of review of the circuit court’s order is that of a motion for summary judgment. Rule 12(b) of the Arkansas Rules of Civil Procedure states: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Ark. R. Civ. P. 12(b). Appellants included with their complaint several exhibits, which the trial court did not exclude from its consideration when it dismissed their complaint with prejudice. Therefore, the trial court considered matters outside of the pleadings, and the motion to dismiss was converted to a motion for summary judgment. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888. Ordinarily, upon reviewing a court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. However, in a case such as this one, which does not involve the question of whether factual issues exist but rather an issue of law, we simply determine whether appel-lees were entitled to judgment as a matter of law. Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876. I. Standing Appellants contend that, they have standing to bring this action as heirs of D.G. Graham. Appellants argue that a claimant who has a personal stake in the outcome of a controversy has standing. Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007). Appellants assert that D.G. Graham was a listed surviving child in Willie Graham’s last will and testament. Appellants are D.G. Graham’s heirs, and his devise from Willie Graham passed to them. Appellants contend that they therefore have a personal stake in the outcome of this controversy and standing to bring this action. We agree with appellants’ contention that they have standing in this action. However, the trial court did not make a finding that appellants had no standing. Instead, the trial court ruled as follows: In Willie Morse Graham’s Last Will, she specifically named her nine children. She limited the restriction upon the right of alienability of the sale of the 180 acres to her surviving children. The Court concludes that ⅛⅛ power was personal to only the surviving children and not to other heirs. Inasmuch as appellants are seeking to appeal the trial court’s finding that they do not have the power to restrict the sale of the 180 acres, we do not find appellants’ arguments convincing. Appellees contend, and we agree, that setting aside the deed conveying the 8/9 interest to French will in no way benefit appellants. Appellants will have the same collective 1/9 interest they had before their complaint was filed and after this suit is oyer, regardless of the outcome of the litigation. Also, appellees contend that the trial court found that the.provision in Willie Graham’s will that appellants are trying to enforce does not include appellants because they are not children of Willie Graham, but grandchildren. Therefore, because appellants are not “surviving children,” they have no right to restrict an alienation pursuant to the will. Appellants have not shown where the trial court misinterpreted the will; thus, appellants have |finot met their burden of demonstrating error. Finally, because this is not a partition action, Arkansas Code Annotated section 18-60-413 does not apply. Thus, a tenant in common is not prohibited from conveying his undivided interest in real property pursuant to this section. II. Sufficiency of Complaint Appellants argue that the trial court’s dismissal of their complaint was in error because they pled sufficient facts to entitle them to the requested relief. The complaint alleged that the conveyance to French was. unlawful in light of the January 8, 2007 trial court order in the 2005 partition lawsuit. Also, appellants assert that their complaint alleged that Willie Graham wanted the property to remain in the family unless the surviving children agreed otherwise. Finally, the complaint alleged that the option contract to purchase the land was void because the terras of the will prohibited any conveyance absent unanimous consent of the nine devi-sees. In reference to the partition statute, appellants cited American Fidelity Fire Insurance Co. v. Builders United Construction, Inc., 272 Ark. 179, 618 S.W.2d 379 (1981), where the Arkansas Supreme Court affirmed the lower court’s grant of summary .judgment on the grounds that contracts in violation of a statute are void even though not expressly declared so. Because appellants neither offer convincing argument nor cite applicable law to support their arguments, our review is precluded. Adams v. Adams, 2014 Ark. App. 67, 432 S.W.3d 49. Affirmed. Virden and Hixson, JJ., agree. . This is the second time this appeal has been presented, as rebriefing was ordered on October 29, 2014, due to omissions in the appellate brief. Graham v. French, 2014 Ark. App. 578, 2014 WL 5481741. . Graham v. Graham, CIV 2005-212-1, Desha County Circuit Court.

LARRY D. VAUGHT, Judge | ¶Appellants Continental Construction Company (Continental) and Travelers Indemnity Company (Travelers) appeal from an opinion of the Arkansas Workers’ Compensation Commission- awarding appellee Ronnie Nabors benefits for an injury he sustained during his employment with Continental. The Commission affirmed and adopted the administrative law judge’s decision that Nabors sustained a compen-sable injury when he slipped on the ice on the morning of March 2, 2009, while walking from the main gate of the construction site to his employer’s work trailer prior to clocking in. On appeal, appellants argue that substantial evidence does not support the Commission’s finding that Nabors was performing employment services when he was injured.- Specifically, appellants argue that the going-and-coming rule precludes recovery because Nabors was injured while walking to Continental’s work trailer to clock in for the day. We affirm because substantial evidence supports the Commission’s finding that Nabors |¡>had already engaged in employment activity by donning his personal protective equipment and swiping an access card to obtain entry to the job site. On and before March 2, 2009, Nabors worked full-time as an iron worker for Continental, assisting in the construction of a power plant near Blytheville, Arkansas. Continental was one of several subcontractors involved in the project. The site was controlled by the general contractor, Zachary and Dynegy Construction (Zachary), which erected a fence surrounding the job site and controlled entry and exit of all workers through one main gate. In order to enter the gate, Zachary required all workers to don their personal protective equipment and swipe an access card. Nabors and other employees who were not from the area resided at the Royal Inn in Blytheville, approximately a thirty-minute drive from the construction site. They were paid a per diem in addition to their hourly wages to cover the added expenses associated with living away from home. In order to receive their per diem, employees were required to appear at Continental’s work trailer on the job site at 7:00 a.m., even if work was cancelled that day. On the evening of March 1, 2009, Na-bors’s supervisor told Nabors that, due to forecasted inclement weather, there may be emergency work that had to be done at the site the next morning and that he should report to work. On March 2, Na-bors awoke around 5:00 a.m. and observed a significant amount of snow on the ground. He did not see his supervisor’s truck parked outside, leading him to believe that the supervisor had' already gone into work. He called his supervisor to see if work had been cancelled but got no response. Nabors drove to the job site and parked outside the front gate. In order to enter the gate, Nabors donned his Impersonal protective equipment and swiped his access card.. He then walked to his employer’s work trailer, located approximately 200 yards from the main gate. When Nabors was approximately fifty feet from the work trailer, he slipped on the ice, injuring his lower back. The fall took place between 6:30 a.m. and 7:00 a.m. Na-bors then proceeded to the work trailer, signed in, and learned that work had been canceled for the day. Nabors filed a claim for compensation for his injury with the Commission. By agreement of the parties, the primary is sue to be determined was compensability. After a hearing, the ALJ issued an opinion finding that Nabors had suffered a com-pensable injury and awarded him benefits. Continental and Travelers appealed to the Commission. The Commission affirmed and adopted the ALJ’s opinion. Continental and Travelers filed a timely notice of appeal. In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 404, 269 S.W.3d 391, 394 (2007); Jomes v. Xtreme Pizza, 97 Ark. App. 206, 245 S.W.3d 670 (2006). Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Id., 269 S.W.3d 391; Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark. Code Ann. § ll-9-102(4)(A)(i) (Supp. 2007). A compensable injury does not include an injury incurred at a time when employment services were not being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii). An employee is performing employment services when he |4or she is doing something that is generally required by his or her employer. Dairy Farmers of Am., Inc. v. Coker, 98 Ark. App. 400, 255 S.W.3d 905 (2007). We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id., 69 S.W.3d at 4. Appellants contend that Nabors was not performing employment services at the time of the injury because he was on his way to the job trailer to clock in for the day when he fell. The going-and-coming rule ordinarily precludes compensation to an employee while he is traveling between his home and his job because employees who have fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work. Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971); Parker v. Comcast Cable Corp., 100 Ark. App. 400, 405, 269 S.W.3d 391, 395 (2007). Prior to Act 796 of 1993, the premises exception to the going-and-coming rule provided that, although an employee at the time of injury had not reached the place where his job duties were discharged, his injury was sustained within the course and scope of his employment if the employee was injured while on the employer’s premises or on nearby property either under the employer’s control or so situated as to be regarded as actually or constructively a part of the employer’s premises. Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 163, 943 S.W.2d 608, 610 (1997). In Hightower, however, we held that the statutory requirement of the 1993 Act that an employee must be performing 15employment services at the time of the injury eliminated the premises exception to the going-and-coming rule. Hightower, 57 Ark. App. at 164, 943 S.W.2d at 610. In order to determine whether an injured employee was performing employment services, we must analyze whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Pifer, 347 Ark. at 857, 69 S.W.3d at 4. In Caffey v. Sanyo Manufacturing Corporation, 85 Ark. App. 342, 346, 154 S.W.3d 274, 277-78 (2004), we held that an employee who had presented a security badge at two guard shacks and entered the manufacturing plant, but who had not yet clocked in when she slipped and fell in the hallway, was performing employment services because her employer required her go through those obstacles before getting to her work station. Like Caffey, this ease goes beyond the situation in which an employee is injured while walking to or from his vehicle in the parking lot before or after work. Nabors had already taken affirmative steps (or gone through obstacles, as the Caffey court put it) to satisfy the general contractor’s safety and security requirements to enter the job site. Na-bors was clearly advancing his employer’s interests when he complied with the general contractor’s rules regarding access to the job site. Complying with the regulations permitted him to access the site to perform work for Continental and allowed Continental to work in harmony with its direct employer, Zachary. As in Caffey, Nabors was not paid until he clocked in each day, meaning that Continental did not compensate him for his time spent donning safety gear and swiping his access card at the gate. However, in Caffey we held that whether payment is provided for a specific activity is not determinative of whether that activity | (¡qualifies as employment services. The key, again, is whether the activity benefited the employer. We hold that there was substantial evidence to support the Commission’s finding that Nabors was injured while engaged in conduct that benefited Continental, making his injury compensable. We also reject appellants’ argument that Nabors was not engaged in employment services because his real motivation for going to Continental’s work trailer that day was to receive his per diem. All workers are, on some level, motivated by the desire to be paid for their work. However, an employee’s subjective motivations in performing an action are not determinative; the issue is whether his actions advanced the employer’s interest, directly or indirectly. Pifer, 347 Ark. at 857, 69 S.W.3d at 4. We have already determined that there was substantial evidence to support the Commission’s finding that Na-bors’s actions in donning his personal protective equipment and swiping his access card at the front gate advanced Continental’s interests. Affirmed. Whiteaker and Hoofman, JJ., agree.

LARRY D. VAUGHT, Judge |,Appellant Roger Reed appeals from the opinion of the Arkansas Workers’ Compensation Commission (Commission) denying his claim for benefits for an injury he received during his employment with appellee Turner Industries (Turner). On September 18, 2012, Reed fell as he descended a ladder and suffered significant injuries to his right ankle. He was taken to the hospital, where a urine sample tested positive for methamphetamine. The Commission denied Reed’s claim based on Arkansas Code Annotated section 11 — 9— 102(4)(B)(iv), finding that illegal drugs were in his system after the accident and that he failed to rebut the statutory presumption that the accident was substantially occasioned by the drugs. On appeal, Reed contends that (1) the Commission erred in applying section 11 — 9— 102(4)(B)(iv); and (2) substantial evidence does not support the Commission’s decision that he failed to rebut the statutory presumption. We affirm. |2Reed testified that he worked as an electrician for thirty years and worked for Turner for approximately one year prior to his injury. On September 18, 2012, he arrived at work between 6:30 and 6:45 a.m., signed in, had coffee, and awaited his assignment. He said that he was told by his supervisor, Eddie Vance, to work on the “switch gear,” which required multiple trips up and down a ladder.. Reed worked in that capacity until lunch, eating with co-employee Jimmy Choate. Reed returned to work on the “switch gear,” and around 2:45 p.m., fell from the ladder. He testified that he stepped on an angle iron behind the ladder, which obstructed the ladder rung and caused his fall. Reed learned at his deposition that his urine sample tested positive for methamphetamine. He denied using methamphetamine around the time of the accident and denied symptoms of methamphetamine use, i.e., insomnia, dizziness, hyperactiveness, or loss of appetite. He also denied using his asthma inhaler or taking any other medicine before the accident. However, he conceded that (1) he had used methamphetamine eight to ten years prior; (2) he had pled guilty to sexual indecency with a minor in 2004 and that his drug use may have played a role in that incident; (3) he presented at the emergency room in 2004 for complaints of shortness of breath, dizziness, and chest pains and tested positive for methamphetamine and marijuana at that time; (4) he pled guilty in 2007 to possession of drug paraphernalia with intent to manufacture methamphetamine; and (5) he sought medical treatment in June 2012 for injuries to his forehead that he received when he and his son were wrestling. Reed agreed that someone I ¿using methamphetamine should not be around a construction site because it could increase the chances of a misstep or fall from a ladder. Reed’s mother, Linda Lawrence, testified that Reed and his son lived with her. She said that Reed went to drug rehabilitation in 2004 and that she did not think that he had used drugs since that time. She said that she recognized the symptoms of drug use and that Reed did not exhibit those symptoms around the time of the accident. Choate testified that he worked with Reed the day the accident occurred. He said that he had never seen Reed use drugs and that he did not show any signs of being fidgety, violent, or hyperactive that day. Choate said that he ate lunch with Reed and never saw him leave the job site. Choate stated that the angle iron was about chest high and about four inches behind the rung. While he did not use the ladder in question, Choate added that he almost fell off another ladder when he caught his foot on an angle iron. Vance, Reed’s supervisor, testified that he had taken an in-house class on drug use and that it was his job to recognize intoxication at work. He said that if he believed that one of his employees was under the influence, he would remove him from work and request a drug test. Vance further said that he had never suspected that Reed was under the influence of drugs and had never requested that he take a drug test. On the day of the fall, Vance said that he and Reed had been working together on the “switch gear” and that Reed had no problems. Vance also said that Reed did not seem jittery or under the influence of drugs. Vance added that each of them had been successfully climbing up and down the ladder and that he saw no problems with the ladder. |4WiIliam Huyck, safety manager for Evergreen Packaging (the company for which Turner was performing electrical work), testified that he inspected the ladder in question. He said that it was secured by an angle iron that was attached to duct work. He said that the angle iron was four and three-quarter inches behind the rung, which would have given Reed sufficient room to place the ball of his foot on the rung. It was Huyck’s opinion that the angle iron did not cause Reed’s fall. He added that there had been no other safety issues with or complaints about the ladder and that the ladder was not modified after Reed’s fall. Dr. Munir Khalid-Abasi testified that the laboratory cutoff for methamphetamine is 500 ng/ml, and Reed’s test results showed 21,861 ng/ml methamphetamine. After receiving the results, the doctor contacted Reed to confirm what medications he was taking. Reed reported that he had prescriptions for Albuterol and another asthma inhaler but had not taken,them. Dr. Khalid-Abasi said that the positive methamphetamine result would not have been caused by either of those medications. Dr. Khalid-Abasi stated that there are two types of methamphetamine — one type is legal, is found in certain medications (a Parkinson’s disease medication, a nasal vapo-inhaler, Adderall, Vyvanse, and Zy-drex), and might cause a false-positive result. The other type of methamphetamine is illegal. He testified that the laboratory did not determine which of the two types of methamphetamine were found in Reed’s sample. However, Dr. Khalid-Abasi discounted the possibility of a false-positive result in this case because Reed did not report taking any of the medications that contain the legal methamphetamine. The doctor testified that he could not opine as to when Reed consumed the methamphetamine. Auid while the doctor ^acknowledged the high levels of methamphetamine in Reed’s sample, he did not opine that Reed was impaired. Finally, Dr. Khalid-Abasi stated that someone tak ing methamphetamine was at increased risk for accidents, including a misstep on a ladder. A toxicologist from Quest Diagnostic Laboratory, Mark Wuest, testified about the procedures used to test Reed’s sample and the results of same. While he confirmed the positive test results and amounts, he could not state when the drug was ingested or whether Reed was intoxicated. After concluding that the presence of methamphetamine in Reed’s system triggered the statutory presumption that his accident was substantially occasioned by the use of the illegal drug, the administrative law judge (ALJ) concluded that Reed failed to rebut the presumption. The ALJ discounted the testimony of Reed, Vance, Choate, and Lawrence because expert testimony showed that Reed’s test results showed a significant level of methamphetamine in his system. The ALJ specifically found that Reed was not a credible witness, citing his past drug use and criminal conviction for intent to manufacture methamphetamine. The ALJ also found that there was no evidence that Reed ingested other medicine thát would have caused a false-positive test result. On appeal to the Commission, Reed argued that section 11 — 9—102(4)(B)(iv) was inapplicable because testing failed to differentiate between illegal and legal methamphetamine; therefore, there was no evidence that the methamphetamine in Reed’s system was illegal. The Commission rejected this argument, finding the testimony of Dr. Khalid-Abasi and Wuest credible. Accordingly, the Commission applied section ll-9-102(4)(B)(iv), which triggered the | firebuttable presumption that illegal drugs substantially occasioned the accidental injury. The Commission next found that Reed failed to rebut the presumption. While Reed claimed that his accident was caused by the angle iron, the Commission disagreed. It found that Vance — who testified that he knew of no unsafe conditions involving the ladder and did not consider the ladder unsafe — was more credible than Reed. The Commission further found that Huyck corroborated Vance’s testimony, adding that there had been no reports that the ladder was unsafe and the ladder had not been modified since Reed’s accident. The Commission then cited Dr. Khalid-Abasi’s testimony that Reed had a significant level of methamphetamine in his system at the time of the accident and that the presence of methamphetamine greatly increased the probability of misstepping or slipping off a ladder. This appeal followed. When the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for denial of relief. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, at 10-11, 432 S.W.3d 25, 32. Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id. at 11, 432 S.W.3d at 32. This court will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id., 432 S.W.3d at 32. At the heart of this case is Arkansas Code Annotated section 11-9-102(4)(B)(iv)(a) (Repl.2012), which provides that a compensable injury does not include an injury where the accident was substantially occasioned by illegal drugs. Under the statute, the presence of illegal drugs |7creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of illegal drugs. Ark.Code Ann. § ll-9-102(4)(B)(iv)(6). An employee shall not be entitled to compensation unless it is provéd by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident. Ark.Code Ann. § 11-9-102(4)(B)(iv)(d). In ERC Contractor Yard & Sales v. Robertson, our supreme court held that the plain and ordinary meaning of the phrase “substantially occasioned” required that there be a direct causal link between the use of alcohol (or illegal drugs) and the injury in order for the injury to be noncompensable. 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998). The question of whether an employee has overcome the presumption is a question of fact for the Commission. Edmisten, 2014 Ark. 89, at 10, 432 S.W.3d at 32. Reed first argues that section 11-9-102(4)(B)(iv) does not apply because Turner failed to establish the presence of illegal drugs in his system at the time of his injury. He does not dispute that the test results revealed the presence of methamphetamine; however, he argues that no testing was performed to determine whether legal or illegal methamphetamine was in his system. He maintains that because testing did not confirm that illegal methamphetamine was in his system, the rebuttable presumption did not apply. We disagree and hold that substantial evidence supports the Commission’s rejection of this argument because there was no evidence that Reed consumed the types of medication that contain legal methamphetamine. The doctor testified that Reed reported that he had not taken any medication prior to his accident, and Reed confirmed this: Q: I want to ask you, at the time of the injury, you were not taking any prescription meds? IsA: Absolutely nothing, not even a Tylenol, nothing. Q: And you had not used your [asthma] inhaler? A: No, sir. Therefore, on this record, there is no evidence that Reed ingested any of the medi-cinbs that contain legal methamphetamine and might cause a false-positive result. Therefore, we hold that substantial evidence supports the Commission’s finding that the statutory presumption was triggered. Ark.Code Ann. § 11-9-102(4)(B)(iv)(6). Reed next argues that substantial evidence does not support the Commission’s finding that he failed to rebut the statutory presumption. He relies on two recent supreme court cases: Edmisten, supra, and Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. Edmisten and Prock suffered injuries in an explosion that occurred when they worked together to cut off the top of a barrel with an acetylene torch. After the accident, both Edmisten and Prock tested positive for marijuana. The Commission found that Edmisten and Prock failed to rebut the presumption that their injuries were substantially occasioned by the use of marijuana. The supreme court reversed, holding that substantial evidence failed to support the Commission’s decisions where the evidence included Edmisten’s and Prock’s denial of drug use prior to the accident; the testimony of two co-workers who did not think that Edmisten and Prock were impaired on the day in question; and evidence that it was the habit of Edmisten and Prock to use a torch to cut the tops off barrels. Edmisten, 2014 Ark. 89, at 13-14, 432 S.W.3d at 33; Prock, 2014 Ark. 93, at 16, 431 S.W.3d at 868. Ultimately, the supreme court held that Edmisten and Prock proved that there was no direct causal link between their marijuana use and the accident. Edmisten, 2014 Ark. 89, at 12, 432 S.W.3d at 33-34; Prock, 2014 Ark. 93, at 17, 431 S.W.3d at 869. Citing Edmisten and Prock, Reed argues that substantial evidence likewise fails to support the Commission’s decision that he failed to rebut the presumption of a direct causal link between the methamphetamine in his system and his accident. He cites his denial of drug use prior to the accident, along with the testimony of his mother, Choate, and Vance, all of whom testified that Reed did not appear impaired on the day of the accident. He claims that the Commission instead based its decision on his history of drug use. While the Commission did refer to Reed’s drug-use history in its opinion, this was not the basis for its finding that Reed failed to rebut the statutory presumption. Instead, the Commission properly focused on causation and found that Reed failed to prove that the angle iron behind the ladder caused his fall. The Commission placed great weight on the testimony of Vance and Huyck, who both said that there was no evidence that anyone else fell from that ladder; no other complaints had been made about the ladder; the ladder was not modified after Reed’s fall; and the angle iron was attached in the proper place. Based on this evidence, the Commission concluded that the ladder was not unsafe and was not the cause of Reed’s fall as he claimed. Substantial evidence supports these findings. Reed’s reliance on Edmisten and Prock is misplaced. In Edmisten and Prock, the evidence demonstrated that the direct cause of the accident was Edmis-ten’s and Prock’s habitual use of a torch to cut the top off of a barrel that once contained a flammable substance. Here, the only evidence in support of Reed’s claim that the angle iron caused his fall from the ladder is his own testimony. And the Commission found that on this issue, Reed’s testimony carried less weight than that of Vance and Huyck, who both testified that the ladder was safe. Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Prock, 2014 Ark. 93, at 12-13, 431 S.W.3d at 867. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and determine the facts. Id. at 13, 431 S.W.3d at 867. After concluding that the ladder was safe, the Commission found that there was a direct causal link between the methamphetamine in Reed’s system and his fall from the ladder. This conclusion is also supported by substantial evidence. Dr. Khalid-Abasi, whom the Commission found to be a credible witness, testified about the significant amount of methamphetamine in Reed’s system at the time of his accident and that the presence of methamphetamine greatly increased the probability of misstepping or slipping from a ladder. Even Reed agreed that methamphetamine consumption increased a person’s chances of misstepping or falling off a ladder. In sum, medical testing demonstrated that an illegal drug was in Reed’s system when he fell from the ladder. This triggered the presumption that Reed’s accident was substantially occasioned by the use of the illegal drug. We affirm the Commission’s finding that Reed failed to rebut the presumption because substantial evidence demonstrated that the ladder was not unsafe and did not cause Reed’s fall. Affirmed. Whiteaker and Hoofman, JJ., agree. . Reed testified that an angle iron is shaped like an "L” and offers support for a ladder. . Reed also tested positive for morphine; however, the record indicates that Reed was prescribed morphine for pain at the hospital after his September 18, 2012 fall. . In finding against Reed, the Commission acknowledged Choate's testimony that he had almost fallen from a ladder because of an allegedly unsafe angle iron. However, the Commission noted that Choate had not used the ladder that Reed claimed was unsafe.

COURTNEY HUDSON GOODSON, Associate Justice | tThis case is an appeal of the Pulaski County Circuit Court’s grant of summary judgment in favor of appellees Central Arkansas Water, Buddy Villines, and Pulaski County against appellants, Bryan Sullins, Kerri Sullins and Charles Williams. Before the circuit court, appellants brought an illegal-exaction claim against appellees, arguing that Pulaski County and Central Arkansas Water had entered into an improper agreement and that as a result, Central Arkansas Water is improperly paying public funds to Pulaski County. We hold that the agreement is a proper exercise of authority under the law and affirm the circuit court. Appellants Bryan Sullins, Kerri Sullins, and Charles Williams filed suit against ap-pellees Pulaski County, Central Arkansas Water, and Buddy Villines in his capacity as Pulaski County Judge, claiming that appellees had entered into an agreement which necessitated | ^Central Arkansas Water to expend public funds illegally. The facts underlying the illegal-exaction claim are as follows. Central Arkansas Water owns and operates Lake Maumelle as a public water supply. Lake Maumelle is located in Pulaski County. In 2007, Central Arkansas Water, adopted a Watershed Management Plan, which recommended certain management options for the protection of the Lake Maumelle watershed. One of the management options the plan suggested was the implementation through the county governments of land-use controls for the watershed. Pulaski County supported the idea of subdivision regulations that would implement development controls for the areas of the watershed within Pulaski County. In February 2009, Central Arkansas Water authorized the collection of a “watershed fee” imposed on wholesale customers, including appellants. In April 2009, Pulaski County and Central Arkansas Water entered into the Watershed Protection Agreement at issue in this case. The Central Arkansas Water Board of Directors approved the agreement and the Pulaski County Quorum Court enacted Ordinance 09-OR-26, which authorized the county judge to execute the agreement. At the same meeting, the quorum court adopted a Subdivision Ordinance, including Chapter 8, which provides special provisions applicable to the Pulaski County portion of the Lake Maumelle Watershed. In the complaint, appellants alleged that they and other similarly situated taxpayers had paid the watershed fee imposed by Central Arkansas Water and that it constituted an illegal exaction because the Watershed Protection Agreement between Central Arkansas Water and Pulaski County was illegal. Specifically, appellants argued that the Watershed Protection 13Agreement was improper because it was a contract for the “joint exercise of governmental powers, privileges and authority” pursuant to the Interlocal Cooperation Act, codified at Arkansas Code Annotated section 25-20-104 (Repl. 2014), and because it failed to comply with the applicable statutory terms. In response, appel-lees contended that the agreement was proper under the Interlocal Agreement Act, codified at Arkansas Code Annotated section 14- 14-910 (Repl. 2013) because it was an agreement for administrative services. The parties filed cross-motions for summary judgment, and the circuit court ruled that the agreement was a proper contract for administrative services. Accordingly, the circuit court entered summary judgment in favor of appellees, and appellants filed this appeal. Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Gentry v. Robinson, 2009 Ark. 684, 361 S.W.3d 788. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13. The burden is not on the moving party to demonstrate that every fact is undisputed, but to show that reasonable minds could not differ as to the conclusion to be drawn from them.. Early v. Crockett, 2014 Ark. 278, 436 S.W.3d 141. Summary judgment is also appropriate when the circuit court finds that the allegations, taken as true, fail to state a cause of action. Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998). When.parties file cross-motions for summary [¿judgment, as in this case, we determine on review whether the appellee was entitled to judgment as a matter of law. Rylwell, LLC v. Men Holdings 2, LLC, 2014 Ark. 522, 452 S.W.3d 96. Illegal-exaction lawsuits in Arkansas are authorized under article 16, section 13, of the Arkansas Constitution, which provides, “Any citizen of any county, city, or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” An illegal exaction is defined as any exaction that either is not authorized by law or is contrary to law. Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006). Two types of illegal-exaction cases can arise under article 16, section 13: “public funds” cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, and “illegal-tax” cases, where the plaintiff asserts that the tax itself is illegal. McGhee v. Ark. State Bd. of Collection Agencies, 360 Ark. 363, 201 S.W.3d 375 (2005). This court has stated that citizens have standing to bring a “public funds” ease because they have a vested interest in ensuring that the tax money they have contributed to a state or local government treasury is lawfully spent. Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999). Accordingly, “a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds.” Farrell v. Oliver, 146 Ark. 599, 602, 226 S.W. 529, 530 (1921). First, and foremost, an illegal exaction is an exaction that is either not authorized by law or is contrary to law. Stromwall v. Van Noose, 371 Ark. 267, 265 S.W.3d 93 (2007). Where the expenditure is authorized by statute, no illegal exaction occurs. Id. Appellants’ first argument is that the circuit court erred in ruling that the Watershed Protection Agreement was a proper contractual agreement between Pulaski County and Central Arkansas Water. Appellants argue that, in entering into the agreement, the parties wére required to comply with the terms of the Interlocal Cooperation Act, codified at Arkansas Code Annotated sections 25-20-101 et seq., which provides in relevant part, Any governmental powers, privileges, or authority exercised or capable of exercise by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law and jointly with any public agency of any other state of the United States which has the same powers, privileges, or authority, but only to the extent that laws of the other state or of the United States permit the joint exercise or enjoyment Ark. Code Ann. § 25-20-104. Appellants assert that the Watershed Agreement Act is governed by the Interlocal Cooperation Act because it is an agreement for “governmental powers, privileges, or authority.” In support of their contention, appellants point to several sections of the agreement. First, appellants point to section 2.02 of the agreement, which states: Section 2.02 Staff. Pulaski County will hire adequate staff within the Planning Department to perform its obligations under this Agreement (the “Staff’). A preliminary list of the Staff contemplated by the Parties under this Agreement is attached hereto as Schedule I and incorporated herein by this reference. The Staff will be dedicated primarily to the implementation and enforcement of Chapter 8 and the Stormwater Management Ordinance within the Pulaski County Watershed. The Parties contemplate that Pulaski County will not need to immediately hire all of the Staff listed in Schedule I. Accordingly, CAW will initially fund that amount necessary to hire and provide equipment and administrative support for the Watershed Inspector. [ ^Thereafter, as needed from time to time,-in October of each year, Pulaski County will notify CAW of the county’s intent to fill any or all of the remaining positions set forth on Schedule I, including an estimate of when the funding for each position will be required. The Parties will work together to assure that the Staff remains adequate to perform its obligations relating to the protection of the Pulaski County Watershed. Next, appellants rely on section 3.03 which provides: Section 3.03 Affirmative Covenant. Throughout the term of this Agreement, CAW covenants and agrees that it will take each and every action reasonably required of it to ensure that it fulfills its obligations to Pulaski County under this Agreement and to assist Pulaski County with the implementation and enforcement of Chapter 8 and the Stormwater Management Ordinance as contemplated hereby. Additionally, appellants point to section 4.05, wherein Pulaski County designates Central Arkansas Water as a Responsible Management Entity (“RME”) for certain purposes relating to the wastewater system. Specifically, Section 4.05 provides, Section 4.05 Responsible Management Entity. CAW is not authorized by law to operate and/or maintain- wastewater systems. Nevertheless, CAW does have adequate engineering experience and expertise to provide advice concerning the design and installation of wastewater systems. Accordingly, until such time as the Little Rock Wastewater Utility is designated by Pulaski County to serve as the Responsible Management Entity (“RME”), or such alternative entity acceptable to CAW is appointed as the RME, the Parties agree as follows: (i) -CAW is designated as an RME for the purpose of approving any Force Line System or On Site System as contemplated by Section 8.2A1 of Chapter 8; (ii) CAW is designated as an RME for the purpose of approving any Wastewater System Maintenance Plan as contemplated by Section 8.2A2 of Chapter 8; and (iii) CAW is designated as an RME for the proposed enforcing the Wastewater System Maintenance Plan, if necessary, and charging the Developer, POA, or Lot Owner as contemplated by Section 8.2C of Chapter 8. 17Finally, appellants cite to section 4.06, wherein Pulaski County designates Central Arkansas Water as its authorized representative and authorizes Central Arkansas Water to “take any and all actions permitted by law it deems necessary to ensure continued compliance with any covenants and conditions contained in any agreement.”. Appellants insist that because Pulaski County and Central Arkansas Water do not have “the same powers, privileges, or authority under the law” they are prohibited by the Interlocal Cooperation Act from entering into this agreement. Furthermore, appellants contend that through these sections of the contract, Pulaski County improperly delegates its responsibility for implementation and enforcement of land-use controls to Central Arkansas Water. Appellees do not dispute that Central Arkansas Water and Pulaski County do not have the same powers but submit that the agreement is valid under the general contracting powers granted to the counties under amendment 55 to the Arkansas Constitution, as well as the Interlocal Agreement Act, codified at Arkansas Code Annotated section 14-14-910. The Interlocal Agreement Act provides, The county court of each county may contract, cooperate, or join with any one (1) or more other governments or public agencies, including any other county, or with any political subdivisions of the state or any other states, or their political subdivisions, or with the United States to perform any administrative service, activity, or undertaking which any contracting party is authorized by law to perform. Ark. Code Ann. § 14-14-910(a). Appel-lees argue that the Watershed Protection Agreement is an agreement for administrative services, activities or undertakings pursuant to section 14- 14-910 and not an agreement for governmental powers, privileges, or authority under section 25-20-104. IsHaving considered the parties’ arguments, we hold that the circuit court correctly ruled that the Watershed Protection Agreement was a valid agreement under Arkansas law. The Interlocal Agreement Act expressly provides authority for a county to contract for “any administrative service, activity, or undertaking.” Ark. Code Ann. § 14-14-910(a). This court has distinguished between a county’s legislative and administrative authority and held that enforcement of an already-established ordinance is an exercise of administrative authority. City of Ft. Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008). Accordingly, as the Arkansas Court of Appeals has summarized, “the enactment and amendment of local zoning is legislative and the sole, nondelegable duty of the local governing body. In contrast, the execution and enforcement of the zoning laws are administrative tasks and hence, dele- gable.” Bolen v. Washington Cnty. Zoning Bd. of Adjustments, 2011 Ark. App. 319, at 7, 384 S.W.3d 33, 38 (2011) (citing City of Ft. Smith v. McCutchen, supra). In this case, the agreement between Central Arkansas Water and Pulaski County provides for the execution and enforcement of a previously enacted zoning ordinance and thus covers only administrative tasks. For example, section 2.02 provides that the duties of the staff will be “implementation and enforcement of Chapter 8 and the Stormwater Management Ordinance within the Pulaski County Watershed.” Furthermore, the section makes clear that the staff will be hired and employed by Pulaski County and not by Central Arkansas Water. Instead, Central Arkansas Water reimburses Pulaski County only for the cost of the staff. Similarly, section 3.03, which states that Central Arkansas Water -will “assist Pulaski County with the implementation and enforcement of Chapter 8 and the Stormwa-ter | ^Management Ordinance as contemplated hereby” does not enact new policy, but simply provides for the enforcement of the existing ordinance. Moreover, section 4.05, designating Central Arkansas Water as a Responsible Management Entity is also not an improper delegation of authority. Although appellants argue this section grants broad powers to Central Arkansas Water over the wastewater management system, the agreement actually limits Central Arkansas Water’s powers to (1) approval of any Force Line System or On Site System, and (2) approval and enforcement of any Wastewater System Maintenance Plan Section. Contrary to appellants’ assertions, the agreement does not place the entire wastewater system under the control or authority of Central Arkansas Water; rather, it allows Central Arkansas Water to advise Pulaski County in its decisions. Thus, because the provisions of the contract do not delegate rulemaking or policy-making powers to Central Arkansas Water but instead relate only to administrative actions, such as implementation and enforcement of the ordinance previously passed by Pulaski County, the circuit court did not err in ruling that the agreement was administrative. Additionally, we reject appellants’ argument that the Interlocal Agreement Act requires Central Arkansas Water to possess the independent legal authority to perform the services under the contract. Section 14-14-910 provides that counties may contract with public agencies “to perform any administrative service, activity, or undertaking which any contracting party is authorized by law to perform.” Ark. Code Ann. § 14-14-910(a) (emphasis added). Clearly, the plain language of this section contemplates that counties may contract for any administrative service as long as either the county or the public agency is legally authorized |into perform it. In this case, appellants do not claim that there is any portion of the agreement which neither Pulaski County nor Central Arkansas Water is authorized by law to perform. Additionally, the statute expressly authorizes counties to “cooperate in the exercise of any function, power, or responsibility; share the services of any officer, department, board, employee, or facility; and transfer or delegate any function, power, responsibility, or duty.” Ark. Code Ann. § 14-14-910(b)(2). The plain language of this section contemplates that counties may delegate administrative powers to other public agencies under the provisions of this section. Finally, appellants argue that section 14-14-910 is not applicable because Pulaski County has not obligated its own financial resources in the agreement. However, section 2.02 expressly mandates that “Pulaski County will hire adequate staff within the Planning Department to perform its obligations under this Agreement.” As appellants recognize in their brief, this provision will require Pulaski County to pay for such expenses as the salaries of the staff, employee benefits and payroll taxes, registration fees, and training. Appellants also admit that these costs will initially be paid from the general-tax revenues of Pulaski County before Central Arkansas Water reimburses the county for them. As the agreement requires Pulaski County to expend money from its general tax revenues in executing the agreement, the contract implicates the financial resources of the county. Additionally, it is undisputed that the actual enforcement of the agreement will, at times, involve existing members of the Pulaski County staff beyond those for which Central Arkansas Water is reimbursing Pulaski County. Those additional staff members are already being paid through Pulaski County ^financial resources, so the use of those staff members will also implicate the financial resources of Pulaski County. Because the agreement is for administrative activities that either Pulaski County or Central Arkansas Water is legally authorized to perform and Pulaski County’s financial resources are obligated in the agreement, the circuit court properly concluded that the agreement was governed and authorized by Arkansas Code Annotated section 14-14-910. Accordingly, because the contract between Pulaski County and Central Arkansas Water is authorized by the Interlocal Agreement Act, the expenditure of funds under the contract is not an illegal exaction, and the circuit court properly granted summary judgment against appellants. Affirmed.

PER CURIAM | Now before us is petitioner Kenny Hal-facre’s pro se petition to reinvest jurisdiction in the trial court to consider a petition under the version of Arkansas Rule of Criminal Procedure 37.1 in effect when he became eligible to file a petition. The petition pertains to a judgment of conviction entered in 1986 wherein petitioner was found guilty of aggravated robbery and sentenced as a habitual offender to life imprisonment under the statute in effect at the time of the crime. See Ark. Stat. Ann. §§ 41-2102(a) and 41-2103 (Repl.1977). We affirmed. Halfacre v. State, 292 Ark. 329, 731 S.W.2d 182 (1987). Rule 37, as it applied to petitioners with judgments entered before July 1, 1989, which had been affirmed on appeal, requires the petitioner to obtain leave from this court before filing |?a postconviction petition in the trial court. Petitioner here contends that he is entitled to postconviction relief on the ground that the judgment in his case is illegal because Act 93, which became effective in 1977, was not applied to his sentence. The Act, codified at Arkansas Statutes Annotated sections 43-2828 to 43-2830 (Repl. 1977 & Supp.1985), provided guidelines for the length of time that a habitual offender was required to serve before the offender would be eligible for parole. See Tisdale v. Lockhart, 288 Ark. 203, 703 S.W.2d 849 (1986). He argues that he should be serving life with the possibility of parole inasmuch as the Act should have been applied to his sentence. Petitioner relies in the petition on our ruling in Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533. In Hale, we held that the judgment in the criminal case was amendable to correction in a proceeding for a writ of habeas corpus on the ground that there was an error in the sentence imposed that rendered the judgment-and-commitment order invalid on its face. The instant petition is the fourth request filed in this court seeking Rule 87.1 relief pertaining to the criminal case at issue. As we noted when we dismissed the third such petition, under the applicable provision of the Rule, petitioner was required to raise all issues for postconviction relief in the original petition unless that petition was denied without prejudice. Halfacre v. State, 2010 Ark. 377, 2010 WL 3915028 (per curiam); Ark. R.Crim. P. 37.2(b) (1985); Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (per curiam). Petitioner’s original petition, which he filed in lathis court in 1987, was not denied without prejudice to filing a subsequent petition. Halfacre v. State, CR-86-183, 1987 WL 19616 (Ark. Nov. 9, 1987) (unpublished per curiam). The second petition was denied by this court in 2007 as being a prohibited subsequent petition. Halfacre v. State, CR-86-183, 2007 WL 853461 (Ark. Mar. 22, 2007) (unpublished per curiam). The third petition was also' dismissed in 2010 as a prohibited subsequent petition. Halfacre, 2010 Ark. 377. Petitioner was therefore prohibited from filing another petition under the Rule, and the instant petition is subject to dismissal on that basis. Petition dismissed. . The petition was filed under the docket number assigned to the direct appeal of the judgment when the appeal was lodged in this court in 1986. . Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In re Reinstatement of Rule 37 of the Ark. Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). The revised rule does not require petitioners to gain leave of this court before proceeding in the trial court.

PER CURIAM | Appellant Ricky Ray Anderson appeals the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014) that challenged a judgment reflecting his conviction for capital murder and sentence of life imprisonment without the possibility of parole. We affirm the order denying postconviction relief. In 2010, a jury found appellant guilty of murdering Jill Ulmer, his former girlfriend. This court affirmed the judgment. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Appellant then filed in the trial court a timely, verified petition under Rule 37.1. The trial court held a hearing on the petition, and it entered an order with findings of facts and conclusions of law that denied and dismissed the petition. Appellant lodged this appeal and alleges that the trial court erred in denying his motion for appointment of counsel, failed to provide an adequate order, and failed to find that counsel was ineffective, as well as a number of additional bases. Appellant’s briefs are difficult to follow. He attempts to raise numerous claims not raised |2below and not addressed by the circuit court, and he expands the arguments for those claims he did raise. Claims not raised below are not preserved for appellate review. Pollard v. State, 2014 Ark. 226, 2014 WL 2019296 (per curiam). An appellant is limited to the scope and nature of his arguments made below, and we consider only those arguments that were considered by the trial court in rendering its ruling. See Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). Appellant claims that it was error for the trial court not to appoint counsel to represent him for the Rule 37.1 proceedings, which he asserts was required under the United States Supreme Court’s holdings in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). This argument was not preserved at the trial court. The court acknowledged that appellant had sought counsel through a motion and that it had not appointed counsel, but the court did not provide a clear ruling on the request nor did appellant clearly object. Appellant next contends that the trial court was required to provide a ruling on all claims raised in the proceedings and that the order was therefore insufficient under our procedural rules. It is true that Arkansas Rule of Criminal Procedure 37.3(a) provides that the trial court must provide written findings specifying the parts of the files or records relied on in support of its findings before dismissing a Rule 37.1 petition summarily. In cases where this court cannot determine from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no. relief is warranted, |sthe failure to provide written findings on a claim may be reversible error. Guevara v. State, 2014 Ark. 200. Here, the trial court did not dismiss the petition summarily under Rule 37.3(a), and it conducted an evidentiary hearing. The court was required to determine the issues and make written findings of fact and conclusions of law with respect to those issues. Ark. R.Crim. P. 87.3(c). However, it is the obligation of an appellant to obtain a ruling from the trial court in order to preserve an issue for appellate review under those circumstances. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Thus, because there was a hearing on the petition, if the trial court’s order did omit issues, there was no error in the adequacy of the order that warrants reversal. Because appellant failed to request an order supplementing the trial court’s rulings or obtain a ruling on the omitted issues, our review is limited to the issues that were raised below, which appellant raises on appeal, and for which the trial court provided a ruling. This court does not reverse the grant or denial of postconviction relief unless the trial court’s findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. The relevant issues are claims of ineffective assistance of counsel. On review of claims of ineffective assistance of trial counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and, under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. To satisfy the first prong of the Strickland test, a postconviction petitioner must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254 (per curiam). Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. This court has held that, in order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in the sentencing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). Unless a petitioner under Rule 37 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Jordan v. State, 2013 Ark. 469, 2013 WL 6046053 (per curiam). There is ^therefore no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. See id.-, see also Davis v. State, 2014 Ark. 17, 2014 WL 186011 (per curiam). Applying this standard, under the circumstances here, appellant could not prevail on a claim of ineffective assistance that alleged prejudice concerning the sentencing phase of his trial. Appellant received the most favorable outcome possible at trial regarding punishment, in that, after appellant had been found guilty of capital murder, he was not sentenced to the harsher of the two possible punishments. See State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007) (holding that prejudice was not shown as a matter of law where appellant received less than the maximum sentence for the offense charged). So, we need not consider further any claims that appellant raised concerning the sentencing phase of the trial, regardless of whether the claim was raised below and ruled on by the trial court. Of those claims remaining, appellant’s first claim of error is that counsel was ineffective for failing to object to the denial of access to funds for an investigator and a mental-health expert to pursue a mental-defect defense. Appellant contends that the investigation of his case was compromised as a result. The trial court did not clearly identify this issue as one on which it provided a ruling, but, to the extent that the claim was raised and may have been ruled on in the trial court’s generalized findings, the trial court correctly determined that appellant failed to demonstrate prejudice. Appellant was first represented by independent counsel, and, when the motion for funds was considered, the court appointed public defenders to also represent him. The court noted | f;that it did so because the public defenders had access to resources to provide appellant with the investigators and experts requested. As the trial court found, the defense did engage experts following appellant’s evaluation at the State hospital who provided independent mental-health evaluations, and appellant'points to no facts to demonstrate that some other expert could have provided more useful reports. Appellant did not therefore demonstrate prejudice from counsel’s failure to object to denial of funds to engage outside experts. Appellant next argues that counsel was ineffective for failing to raise and preserve for appeal an argument that the causation instruction given to the jury impermissibly shifted the burden of proof. To the extent that appellant received a ruling on this issue, the trial court was correct to conclude that appellant failed to demonstrate prejudice. Appellant contends that counsel should have preserved the argument that the burden of proof shifted impermissibly because the jury instruction required him to show that his actions were clearly insufficient to cause the victim’s death. But, the instruction in question specifically stated that “the State must prove that Ricky Anderson caused a particular result,” with the result being Ulmer’s death. Appel lant was not required by the instructions to show that his actions were clearly insufficient to cause Ulmer’s death. Instead, the jury instruction provided for an affirmative defense, where the State was required to show that Ulmer’s death resulted from |vappellant’s conduct either alone or together with another cause, but, if there were multiple causes of her death, appellant could show that another cause was clearly sufficient to produce the result and that appellant’s conduct was clearly insufficient by itself. Appellant identified no mandatory presumption of an element of the crime or other way in which the instruction dictated that the jury was required to find causation. See Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); see also Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Next, appellant challenges the sufficiency of the evidence against him. The trial court found that the judgment was supported by the evidence. Challenges to the sufficiency of the evidence are not cognizable under Rule 37.1, even if framed as an allegation of ineffective assistance, where the claim amounts to a direct attack on the judgment. Winters v. State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam). Moreover, this court addressed the sufficiency of the evidence on direct appeal and upheld the judgment. Anderson, 2011 Ark. 461, at 6, 385 S.W.3d at 219. Finally, appellant asserts that the trial court incorrectly found that it was trial strategy for his attorneys not to have tested the knives at the crime scene for fingerprints and that counsel were not ineffective for failing to adequately investigate the issue of his competency. As already noted, counsel did engage independent evaluations of appellant’s mental condition, and appellant did not demonstrate how further investigation might have provided more favorable evidence concerning his competency. One of appellant’s attorneys testified in the hearing on the Rule 37.1 petition that counsel had discussed requesting testing of the knives for fingerprints, |sbut decided that it would be better to be able to argue that the knives had never been tested. Cristi Beaumont, one of appellant’s appointed attorneys, testified that the concern was that appellant had admitted that he had touched the knives and the testing could have potentially confirmed that. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. While the decisions must be based on reasonable professional judgment, counsel is allowed great leeway in making strategic and tactical decisions. Stewart, 2014 Ark. 419, 443 S.W.3d 538. Counsel in this case articulated how the tactical decision not to test for fingerprints furthered the adopted strategy. To the extent that appellant may be asserting that counsel unreasonably failed to adopt his desired defense theory that the police inflicted the wounds postmortem, Beaumont also addressed that issue in her testimony and indicated that counsel believed that there was not sufficient evidence to present that defense without a loss of credibility. It was appellant’s burden to show that specific acts or omissions by counsel could not have been the result of reasonable professional judgment. He did not demonstrate that the chosen strategy was unreasonable or that other attorneys would have sought to have the fingerprint testing done, and he thus did not meet his burden to overcome the presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance. See Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003). The trial court was therefore not clearly ^erroneous in finding that counsel was not ineffective. Affirmed. . Appellant, for example, includes allegations in his brief that the judge in the Rule 37.1 proceedings was biased or had a "personal interest," although he provides no factual substantiation for those conclusory claims. In addition to a related claim of ineffective assistance of counsel, he asserts an independent constitutional claim that the trial court abused its discretion in failing to allocate funds to hire an independent investigator and experts. There is no indication in the record that these issues were raised below or ruled upon. . The specific language of the instruction given was as follows: In these instructions, you will be told that the State must prove that Ricky Anderson caused a particular result. Causation exists when the result would not have occurred except for the conduct of Ricky Anderson operating either alone or together with another cause unless the other cause was clearly sufficient to produce the result and the conduct of Ricky Anderson was clearly insufficient by itself.

PHILLIP T. WHITEAKER, Judge | )This case requires us to construe a trust agreement in which Marie Eackles, one of the two settlors of a revocable trust, amended the trust after the death of the other settlor, her husband Donald Eackles. Our review encompasses whether the trial court erred (1) by finding that Marie had the power to amend the trust after the death of her husband; (2) in its interpretation of the trust and resultant distribution; and (3) by awarding attorney’s fees. Finding no error, we affirm. I. Facts J. Donald Eackles and A. Marie Eackles were husband and wife. In 1995, while living in California, they created and funded the Eackles Family Trust. After the creation and funding of the trust, Donald and Marie used trust assets to purchase a house in Monticello, ^Arkansas. The warranty deed for that house was titled in their personal names as “J. Donald Eack-les and A. Marie Eackles.” The house in Monticello was never deeded to the trust. Donald and Marie amended the trust several times during their joint lifetimes with the final joint amendment of the trust occurring on March 14, 2000. At that time, they each executed a will. Pursuant to the terms of the trust, Donald and Marie served as co-trustees during their joint lifetimes, and California law governed. The status of co-trustees terminated upon the death of either Donald or Marie. Upon the death of the first spouse, the trust provided that the surviving spouse became the sole trustee and also provided that the trust assets would be divided into two trusts, Trust A and Trust B. Trust A would consist of the separate property of the surviving spouse and one-half of the community properly. Trust B would consist of the separate properly of the deceased spouse and one-half of the community property. Upon the death of the surviving spouse, Daren Cason, Marie’s nephew and the appellant, was named as the successor trustee and was a beneficiary of the trust. Donald died in October 2002. Upon his death, Marie continued to serve as trustee under the trust. In that capacity, she did not divide the trust proceeds into the two separate trusts, Trust A and Trust B. After her husband’s death, Marie moved to Arkansas and determined that she wanted to further amend the Eackles Family Trust. On March 5, 2004, she executed the following documents: (1) Power of Appointment; (2) Amendment to Eackles Family Trust; and (3) Last Will and Testament of A. Marie Eackles. The Power of Appointment expressly states that A. Marie Eackles is executing the same pursuant to power Rgranted to her by the terms of the trust and that she appointed to her estate all of the property over which she had the power of appointment, including principal and undistributed income in Trust A and principal and undistributed income in Trust B of the Eackles Family Trust. Marie’s amendment made the following changes: (1) appointed Union Bank & Trust Company as Successor Trustee; (2) changed the choice of law from California to Arkansas; and, most notably, (3) disinherited Daren Cason and made other changes to the distribution schemes of Trust A and Trust B. Marie died in June 2008. Pursuant to the 2004 trust amendments executed by Marie, Union Bank & Trust Company began to serve as successor trustee. As successor trustee, it was charged with distributing trust assets. In fulfilling this duty, Union Bank & Trust Company concluded that Marie had the authority to alter the provisions of Trust A but not Trust B. It employed a certified public accountant to perform an audit necessary to determine the valuation of Trust A and Trust B. The accountant concluded that Trust A was composed of 66.9% of the total trust assets and Trust B was composed of 33.1% of the total trust assets. Following the audit, Trust A and Trust B were funded in 2010. Union Bank & Trust Company filed a petition in the Drew County Circuit Court seeking a declaratory judgment as to the appropriate distribution of trust assets. Daren Cason responded and objected to the petition and proposed distribution. He also filed a counterclaim alleging that Union Bank & Trust Company breached its fiduciary duty to allocate and protect trust assets. ^Following a trial and posttrial briefing by the parties, the trial court concluded that (1) Union Bank & Trust Company was the lawfully constituted Successor Trustee; (2) Arkansas law applied; (3) the house located in Monticello, Arkansas, was not a trust asset; (4) Marie had the power to appoint and otherwise modify the provisions of Trust A, and those assets would go to her decedent’s estate; (5) Marie did' not have the authority to modify or appoint in Trust B; (6) Trust A was composed of 66.9% of the trust and Trust B was composed of 33.1% of the trust; and (7) the Barton Law Firm was entitled to $18,621.70 in attorney’s fees for its services as legal counsel for Union Bank & Trust Company. The court ordered distribution to be made in accordance with this ruling. As such, Daren Cason stood to inherit a portion of the trust assets but a much smaller portion than he would have originally inherited. Daren Cason appealed the trial court’s order. II. Standard of Review The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Rose v. Rose, 2013 Ark. App. 256, 427 S.W.3d 698; Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996). Arkansas appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual and legal questions. Rose, supra; In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. A finding by a circuit court in an equity case will not be reversed unless it was clearly erroneous. Id. |BIII. Amendment of the Trust The appellant contends that the trial court erred in finding that Marie had the authority to amend Trust A after her husband’s death. He raises two distinct arguments in support of his position: (1) because community property was involved, the trust could only be amended by joint action; and (2) that joint action was required for amendment because the parties executed reciprocal wills. A. Community Property The Eaekles Family Trust was executed in California, a community-property state. Arkansas is not a community-property state but does address community property statutorily. Arkansas Code Annotated section 28 — 73—602(b)(1) states that “if a revocable trust is created or funded by more than one (1) settlor, to the extent the trust consists of community property, the trust ... may be amended only by joint action of both spouses.” This statutory section controls the Eaekles Family Trust. Pursuant to this statutory provision, the appellant argues that Marie was prohibited from unilaterally amending the trust after Donald’s death. However, there is an exception to this general statutory rule. When the terms of the trust express a clear indication of a contrary intent, the terms of the trust prevail. Ark. Code Ann. § 28-73-1106(a). Here, the terms of the trust clearly indicate a contrary intent of the settlors. Section 2.02 of the trust authorizes the surviving spouse to amend Trust A by providing that Grantors may, at any time in their joint lifetimes, amend or alter any of the terms of this Trust by an instrument in writing signed by both Grantors and delivered to the Trustee. Upon the death of the first Grantor survived by the Surviving Grantor, the Surviving Grantor may amend or alter any of the terms of Trust A. |fiThe terms of the trust prevail over the general provisions found in Arkansas Code Annotated section 28-73-602(b)(l). Ark. Code Ann. § 28-73-1106(a). We find no error in the trial court’s conclusion that even though community property was involved, Marie had the authority to amend the trust after her husband’s death. B. Reciprocal Wills Alternatively, the appellant contends that it was error for the trial court to conclude that Marie had the power to amend her will and trust after Donald’s death because their wills were reciprocal. Arkansas recognizes reciprocal wills as a legitimate estate-planning device to effect the intent of a married couple to dispose of collective property. Gregory v. Estate of Gregory, 315 Ark. 187, 191, 866 S.W.2d 379, 382 (1993). The execution of reciprocal wills generally prevents amendment after the death of one spouse. Dotson v. Dotson, 2009 Ark. App. 819, 372 S.W.3d 398. The execution of reciprocal wills is governed by Arkansas Code Annotated section 28-24-101(b). This statute requires that contracts to make or not to revoke a will be proven by a writing or an express reference within the will. While terms of the wills executed by Donald and Marie were virtually identical, there is no writing evidencing a contract not to revoke a will as required by Arkansas Code Annotated section 28-24-101(b). Without written evidence of a contract not to revoke, we cannot conclude that Donald and Marie executed reciprocal wills. When determining whether reciprocal wills and trusts were created, the principal rule is to ascertain the intent of the settlor. Bailey v. Delta Trust & Bank, 359 Ark. 424, 432, 198 S.W.3d 506, 512-13 (2004). A court must examine the four corners of the instrument, considering its language and if possible to give meaning to all of its provisions. Id. A review of the wills and the trust indicates that the .parties did not intend for the trust to be irrevocable. As discussed previously, section 2.02 of the trust contemplated that the surviving spouse could amend or alter the terms of Trust A. This further negates the appellant’s argument that reciprocal wills were created. IV. Interpretation and Distribution of the Trust To support his contention that the trial court erred in interpreting and distributing the trust, the appellant argues (1) that the house in Monticello should have been determined to be part of the trust estate and (2) that Marie waived her interest in any trust property when she failed to allocate the trust property within six months of Donald’s death. A. The House The trial court determined that the house located in Monticello, Arkansas, was not a trust asset. In 2002, Marie and Donald Eackles used trust assets to purchase the house, and the warranty deed for the house listed the owners as J. Donald Eackles and A. Marie Eackles. There was no mention of the Eackles Family Trust on the deed. We need only consider the face of the warranty deed in determining whether the house is trust property. A presumption arises that a deed is what it purports to be. Smith v. Bisen, 97 Ark. App. 130, 245 S.W.3d 160 (2006). Appellate courts should not resort to rules of construction when a deed is clear and contains no ambiguities. Ark. Presbytery v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). Here, the warranty deed was in the Eackleses’ personal |snames. As husband and wife, they took title in the house as tenants by the entirety, and the house became Marie’s sole property following Donald’s death. Foster v. Schmiedeskamp, 260 Ark. 898, 545 S.W.2d 624 (1977). Furthermore, the trust documents show that they contemplated amending the terms of the trust and the assets in the trust. Section 1.012 of the trust gave Donald and Marie the authority to withdraw money from the trust for any reason, and Section 2.02 granted them the authority to alter or amend any of the terms of the trust. These sections show that Donald and Marie clearly intended to allow modifications to the trust and the trust assets during their joint lifetimes. B. Allocation of Funds It is undisputed that Marie did not divide the property into Trust A and Trust B within six months of Donald’s death. The appellant contends that the terms of the trust required Marie to do so and that her failure to comply with this provision of the trust resulted in her waiving any claim to the property. When construing a trust, the principal rule is to ascertain the intent of the settlor. Bailey, supra. A court must examine the four corners of the instrument, considering its language and if possible to give meaning to all of its provisions. Id. In support of his position, the appellant cites section 1.025 of the trust which reads as follows: Whenever the Trustee is directed to make a distribution of Trust assets or a division of Trust assets into separate Trust or shares on the death of a Grant- or, the Trustee may, in the Trustee’s absolute discretion, defer such distribution or division until six months after the Grantor’s death. 19While this particular section seems to support the appellant’s position, the law requires us to attempt to ascertain the intent of the settlor by considering the trust provisions as a whole. Section 7.02 also concerns the division of trust assets and provides, There need be no physical segregation, or division of the various Trusts except as segregation or division may be required by the termination of any of the Trusts, but the Trustee shall keep separate accounts for the different undivided Trusts. Reading these sections of the trust together, we conclude that Marie was not required to divide the assets for Trust A and Trust B during her lifetime so long as an accounting of the assets that belonged in each trust could be performed. The interpretation that the appellant suggests would render the language of section 7.02 superfluous. We find no error on this point. V. Attorney’s Fees Arkansas Code Annotated section 28-48 — 108(d)(1) authorizes the trial court to award fees for legal services rendered in connection with the administration of the estate, and an award of attorney’s fees will not be set aside absent an abuse of discretion. Calvert v. Estate of Calvert, 99 Ark. App. 286, 259 S.W.3d 456 (2007). The appellant argues that the trial court’s award of $18,621.70 to the Barton Law Firm for its services rendered to Union Bank & Trust Company was in error. • He asserts that Union Bank & Trust Company was litigating to enforce the. amended trust, which only benefited Marie and not the other beneficiaries, and because it was working to Marie’s benefit, it should not be awarded attorney’s fees. |1flWe disagree. As trustee, Union Bank & Trust Company had an obligation to properly distribute the assets of the trusts, and from the beginning, it was apparent that there was a dispute regarding distribution that would require adjudication by a court. Union Bank & Trust Company litigated whether certain items of real property were trüst assets and also the efficacy of the trust documents created by Marie Eackles after her husband’s death. In addition, it also successfully defended the trust against a $1 million counterclaim for damages filed by the appellant and defended the trust against his nearly $70,000 in expense claims. The trial court ultimately awarded him only $551.17 for his claims. We find that it was within the trial court’s discretion to award attorney’s fees to Union Bank & Trust Company for services that were rendered in connection with the administration of this estate. VI. Conclusion Having considered each of the arguments presented by the appellant, we find no error and affirm the decision of the trial court in its entirety. Affirmed. Vaught and Hoofman, JJ., agree.

BRANDON J. HARRISON, Judge liOn 26 October 1998, the child-abuse hotline received an allegation that a juvenile had been mistreated. After an investigation, a true finding of child maltreatment was entered. K.D. was named as the offender. The Arkansas State Police notified K.D. of this finding on 9 December 1998; the notification contained the following language: _There was no credible evidence of Child Maltreatment. Pursuant to Act 1341 of 1995, there can be no disclosure of unsubstantiated reports. _There was some credible evidence of Child Maltreatment and_was named as the offender(s). X There was some credible evidence of Child Maltreatment and [K.D.] was named as the offender(s). Circumstances do not indicate that a Protective Services case should be opened for your family. If you have been the subject of a true report and you disagree with the assessment determination, you may request an administrative hearing within thirty (30) days of the receipt of the hand delivery or mailing of this notice of determination. l2The third option, which stated that there was some credible evidence of child maltreatment and named K.D. as the offender, was marked with an “X” as indicated above. Nothing else happened until October 2013, when K.D. discovered that he was on the child-maltreatment registry and requested an administrative hearing. Before the hearing, DHS moved to dismiss the appeal, arguing that K.D. had been served with notice of the true finding in December 1998, that he had not requested a hearing within thirty days of receipt of the notice, and that his request should now be dismissed as untimely. K.D. responded that the notice he received did not adequately inform him of the true finding. In 1998, the statute on child-maltreatment investigative determinations required the following: (a) Upon completion of the investigation the department shall determine that the allegations of child maltreatment are: (1) Unsubstantiated: This determination shall be entered when the allegation is not supported by some credible evidence.... (2) True: This determination shall be entered when the allegation is supported by some credible evidence. (c)(1)(A) In every case where a report is determined to be true, the department shall notify each subject of the report of the determination. (C) Such notification shall include the following: (i) The investigative determination, true or unsubstantiated, exclusive of the source of notification; (ii) A statement that an adult offender subject of the true report may request an administrative hearing; (iii) A statement that such request must be made to the department within thirty (30) days of receipt of the hand delivery or mailing of the notice of determination[.] Ark.Code Ann. § 12-12-512 (Supp. 1997) (repealed 2009), | sA hearing on DHS’s motion to dismiss was held in February 2014. K.D. again asserted that the notification did not comply with the statute; he also argued that it violated his due-process rights. DHS countered that the notification’s statement that there was some credible evidence of child maltreatment was “tantamount to saying there is a ‘true finding.’” The administrative law judge stated, “I’m not gonna say that the notice itself is the best written thing in the world but I’m not also gonna say that it wouldn’t put [K.D.] on notice that he should’ve appealed in thirty days.” DHS counsel also expressed some concern about the notice when he said, “[W]ere I writing [the notice] I think I would pick some different language.... It did not use the exact language ‘true finding’ which I would probably use were I doing it but this was the form that was in effect at the time apparently.” Nevertheless, the law judge’s written order found that K.D. did not request an administrative hearing within thirty days of receiving the notification, so his request for an' administrative hearing was untimely. The order also stated that K.D.’s due-process argument was “of a constitutional nature,” and that the judge “lack[ed] the authority to rule on constitutional arguments.” K.D. petitioned for judicial review pursuant to the Administrative Procedure Act, again arguing that he was not given proper notice and that his due-process rights had been violated. He also asserted that the law judge’s decision was “(1) in violation of constitutional and statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) not supported by substantial evidence of record; and (5) arbitrary and capricious and characterized by an abuse of discretion.” Without a shearing, the circuit court entered a two-sentence order that affirmed the agency’s decision. K.D. then timely appealed to this court. Our supreme court has recently stated the applicable standard of review: Review of administrative agency decisions, by both the circuit court and the appellate court, is limited in scope. The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. We review issues of statutory interpretation de novo; however, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Ark. Dep’t of Human Servs. v. Pierce, 2014 Ark. 251, at 7, 435 S.W.3d 469, 473 (citations omitted). Here, K.D. argues that the law judge’s decision was (1) not supported by substantial evidence, (2) arbitrary and capricious, and (3) in violation of statutory provisions and based on unlawful procedure. All these arguments stem from the notification he received and the problem he has with its content. K.D. also asserts that the notification did not meet minimum due-process requirements. DHS argues to this court that the notification informed K.D. that credible evidence was found, that he was an offender (guilty of an offense), and that he had a right to appeal. DHS asserts that the words “True” or “Unsubstantiated” were not required by the statute “as long as the substantive content of the notification was consistent with these two outcomes.” It also notes that the statute provided that a true determination “shall be ^entered when the allegation is supported by some credible evidence,” which is the wording contained in the notice provided. See Ark. Code Ann. § 12-12-512(a)(2) (Supp. 1997) (repealed 2009). Finally, DHS contends that even if the notice was contrary to the then-existing statute, it was not an error “of such magnitude as to void the effect” of the notice or “to overlook KD.’s own lack of due diligence.” For this reason, DHS argues, KD.’s due-process argument must also fail. This case presents a narrow issue: does substantial evidence support the law judge’s conclusion that the notice was sufficient to put K.D. on notice that he should appeal -within thirty days? We hold that substantial evidence does not exist. The statute states that the notification shall include the investigative determination, True or Unsubstantiated. In statutes, “shall” almost always means “must.” See Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986) (noting that the word “shall” when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity). The notification that K.D. received did not include either of these categorical investigative determinations. Merely stating that there was “some credible evidence” found against him is not the same thing as definitively communicating that there is a true finding against him. The General Assembly’s statute plainly requires an unambiguous communication on such an important topic. We hold that the notice did not adequately inform K.D. that a true finding had been entered against him and that he had the right to appeal. Therefore, we reverse and remand for an administrative hearing on the merits. 1 (¡Because we agree with K.D. that the notice was deficient under the statute, we need not address his constitutional argument based on due process. Constitutional issues are avoided if or when the case can be disposed of without determining constitutional questions. See Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858; Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424; Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007). Reversed and remanded. Abramson and Glover, JJ., agree.

PAUL E. DANIELSON, Associate Justice |, Petitioners Central Flying Service, Inc., and Cal Freeney petition this court for a writ of prohibition directed at Respondent Pulaski County Circuit Court to prohibit the circuit court from continuing to exercise jurisdiction over a wrongful-death complaint filed against them by Janet Mauldin, Administratrix and Personal Representative of the Estate of Mason Mauldin (“the Estate”). In support, Petitioners contend that the Arkansas Workers’ Compensation Commission (“the Commission”) has exclusive jurisdiction over the Estate’s claim. We grant the petition for writ of prohibition. Mauldin, a pilot, was an employee of Central Flying Service, Inc. (“CFS”). Freeney was his supervisor. On January 24, 2013, Freeney assigned Mauldin to pilot a 1998 fixed-wing single-engine Beech-craft “Bonanza” A-36 airplane, FAA Regulation No. N980SS. | ¡Mauldin was to fly the aircraft from Little Rock to pick up passengers in Monroe, Louisiana, whom he would then fly to Beaumont, Texas. On the return flight from Beaumont to Monroe the plane crashed, resulting in the deaths of Mauldin and all three passengers. On January 22, 2014, the Estate filed a wrongful-death complaint against CFS and Freeney, alleging that Freeney compelled Mauldin to pilot the aircraft despite the fact that Mauldin did not possess the proper certification to pilot that particular aircraft. The Estate alleged counts of intentional conduct, respondeat superior, wrongful death, and survival. It sought both compensatory and punitive damages. CFS and Freeney each filed answers and, in addition to denying each of the allegations in the complaint, alleged that the circuit court did not have jurisdiction over the complaint because the Estate’s exclusive remedy was provided by the Arkansas Workers’ Compensation Act (“the Act”). Thereafter, on April 23, 2014, the Estate filed an “Amended and Substituted Complaint” against CFS and Freeney, and added certain State defendants in relation to claims asserting that the entire workers’ compensation scheme is unconstitutional. Therein, the Estate alleged that the Act was not the exclusive remedy because of the alleged intentional acts pled in the complaint. But, the Estate further pled that in the event the circuit court found no intentional act, then the entire Workers’ Compensation Act is unconstitutional, as it ■violates separation of powers and due process under the United States and Arkansas Constitutions. The Estate alleged that the Act was both facially unconstitutional and as ^applied to the facts of this case. In addition to adding the constitutional challenge, the Estate added a claim for negligence, asserting that CFS and Free-ney knew or should have known that Maul-din did not have the required number of FAA hours to pilot the aircraft and that by requiring him to pilot it, it was likely to cause harm to Mauldin. CFS and Free-ney each filed answers denying the allegations of the complaint but further asserting that the Estate’s exclusive remedy is provided by the Act. On" August 7, 2014, CFS and Freeney filed a motion, pursuant to Arkansas Rule of Civil Procedure 12(b)(1) and (6), to dismiss the Estate’s complaint because of a lack of subject-matter jurisdiction. CFS and Freeney argued that because the Estate failed to plead that CFS and Freeney acted with an intent to injure Mauldin, they were entitled to immunity from tort liability for the Estate’s claims against them and that the Commission had exclusive, original jurisdiction to determine the issues of whether a person or entity enjoys immunity as an employer under the Act. The circuit court entered an order on September 26, 2014, denying CFS’s and. Freeney’s motion to dismiss. CFS and Freeney then filed the instant petition for writ of prohibition, asserting that the circuit court was wholly without jurisdiction to determine the applicability of the Act or to determine its constitutionality. This court ordered briefing, and we now consider the merits of the petition. UThis court recently addressed the propriety of a writ of prohibition in Entergy Arkansas, Inc. v. Pope County Circuit Court, 2014 Ark. 506, at 5-6, 452 S.W.3d 81, and explained as follows: It is well settled that a writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Jordan v. Cir. Ct. of Lee Cnty., 366 Ark. 326, 235 S.W.3d 487 (2006). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Ulmer v. Cir. Ct. of Polk Cnty., 366 Ark. 212, 234 S.W.3d 290 (2006). Writs of prohibition are prerogative writs,- extremely narrow in scope and operation; they are to be used with great caution and forbearance. Id. Simply stated, writs of prohibition should issue only in cases of extreme necessity. Helena-W. Helena Sch. Dist. #2 of Phillips Cnty. v. Cir. Ct. of Phillips Cnty., 368 Ark. 549, 247 S.W.3d 823 (2007). The sole question before us is whether the circuit court is wholly without jurisdiction over the Estate’s complaint. In support of their petition for the writ of prohibition, CFS and Freeney argue that the circuit court lacks jurisdiction because they are immune from suit in tort under the exclusive-remedy provision of the Act, which provides that jurisdiction lies exclusively with the Commission. Moreover, CFS and Freeney assert that the Estate’s challenge to the constitutionality of the Act does not change the fact that the exclusive-remedy provision controls because in order for the Estate to demonstrate that it has standing to challenge the Act, it must show that the Act applies to the Estate’s claim, which is a determination that only the Commission can make. The Estate replies and argues that the circuit court is not prohibited from exercising jurisdiction over its complaint because prior case law involving a challenge to the constitutionality of the Act is distinguishable and does not expressly prohibit circuit courts from considering constitutional challenges to the Act. Moreover, the Estate argues that if the (¡¡Commission is allowed to decide issues as to its own constitutionality there is, in effect, no adversarial process because one of the parties is the tribunal, or at least represents the tribunal’s interest. Finally, the Estate argues that it is not necessary for the Commission to first determine whether the Act applies to its complaint in order for it to demonstrate that the Estate has standing to challenge the constitutionality of the Act. Typically, an employer who carries workers’ compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Entergy Ark., 2014 Ark. 506, 452 S.W.3d 81. This rule, known as the exclusivity doctrine, arises from Arkansas Code Annotated section 11-9-105(a) (Repl.2012), which provides that [t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. In relation to the exclusive-remedy provision, this court has repeatedly recognized that the Commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998). Therefore, when a party to a lawsuit raises a question of whether a person enjoys | ^immunity as an employer under the Act, the Commission must first decide the issue. Id.; see also Entergy Ark., 2014 Ark. 506, 452 S.W.3d 81; Reynolds Metal Co. v. Cir. Ct. of Clark Cnty., 2013 Ark. 287, 428 S.W.3d 506. In the present action, the Estate included in its amended complaint allegations that CFS and Freeney “intentionally committed the act of assigning” Mauldin to pilot the aircraft and that this “intentional conduct” caused Mauldin’s injuries that resulted in his death. But, in their motion to dismiss, CFS and Freeney asserted that the Estate failed to allege facts establishing that either of them had acted with the intent to injure Mauldin and, thus, failed to state facts upon which relief coüld be granted. CFS and Freeney raise that same argument in support of the instant petition. In asserting that the Estate’s exclusive remedy is with the Act, CFS and Freeney state that because the Estate failed to plead that they had acted with the intent to injure Mauldin, they are entitled to immunity from tort liability for the Estate’s claims against them. The Estate, however, does not address or otherwise challenge this assertion. Instead, the only issue raised by the Estate in response to this petition is that jurisdiction is proper in the circuit court solely on the basis of the Estate’s challenge to the constitutionality of the Act. Because the Estate does not dispute the fact that its claim for Mauldin’s death falls within the exclusivity provision of the Act, this court need only decide whether the constitutional challenge raised by the Estate somehow confers the circuit court with jurisdiction over a matter that would otherwise be within the exclusive province of the Commission. 17This court has often held that even though the Commission does not have the authority to declare a statute unconstitutional, such constitutional issues should first be raised at the administrative law judge (“ALJ”) or Commission level. Miller v. Enders, 2010 Ark. 92, 2010 WL 682268; Carter v. Georgia-Pac. Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006); Moses v. Hanna’s Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006); Ark. Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998). Although the Estate acknowledges this line of cases, it asserts that those prior holdings do not expressly prohibit a circuit court from considering constitutional challenges to the Act. In so arguing, the Estate focuses on this court’s reasoning in requiring consti-' tutional issues to be raised at the ALJ or Commission level, namely, that such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can be done only at the hearing level. The Estate takes the position that the administrative body is not better situated to decide a constitutional issue and that an adversarial process such as this one is best developed in the circuit court. The problem with the Estate’s position is twofold. First, the Estate’s argument isolates the constitutional question and does not take into consideration that the tort claim, the genesis for its entire complaint, is one that falls within the exclusive province of the Commission. The Estate does not even challenge that the administrative body is best equipped for handling the claim stemming from Mauldin’s death. And, second, as CFS and Freeney point out, in sorder to challenge the constitutionality of the Act, the Estate must demonstrate that the Act applies to it. See Ark. Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004) (holding that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant). This court has held that the Commission has exclusive, original jurisdiction to determine the applicability of the Act. E.g., Miller, 2010 Ark. 92. Before leaving this point, we note that the Estate argues that CFS and Freeney did not raise their standing argument in their motion to dismiss. Moreover, the Estate argues that if the Commission has exclusive jurisdiction to determine if the Act is applicable in a constitutional challenge, it “would effectively never allow a fair constitutional challenge to the Act.” Neither of these contentions has merit. CFS and Freeney have consistently maintained that the Commission has exclusive, original jurisdiction of the Estate’s complaint. The fact that the motion to dismiss does not separately discuss standing as its relates to the constitutional claim does not preclude our consideration of the argument as raised in the instant petition. As to the Estate’s repeated claims that there can be no fair adversarial development or consideration of the constitutional claim if it must be first raised to the Commission, we .first note that such claims are wholly unsupported by any citation to supporting facts or authority. These claims are mere suppositions and provide no basis for this court to depart from our established principle that constitutional questions must be raised before the administrative body. |9It is readily apparent that the Estate amended its complaint to raise a constitutional claim in an effort to avoid the exclusive jurisdiction of the Commission. This point is underscored by the amended complaint itself, which states in relevant part that should this Court determine that there ⅛ no intentional act in this case which would trigger the exclusion from the exclusivity of the Workers’ Compensation Law in this case, Plaintiff contends that the entire Workers’ Compensation Law as set forth at Ark. Code Ann. § 11-9-101, et. seq., is unconstitutional. So, in essence, the Estate challenges the constitutionality of the Act only to the extent that there is no intentional tort that would take this action out of the exclusive province of the Commission. This court will not condone such a blatant attempt at, what is in essence, forum shopping. . In sum, as we explained in Entergy Ark., 2014 Ark. 506, 452 S.W.3d 81, where encroachment on the jurisdiction of the Commission is clear, a writ of prohibition is clearly warranted. Just as it was in that case, it is clear in the instant case that there is an encroachment on the Commission’s jurisdiction; thus, we grant the petition for writ of prohibition. Petition granted. . Although the instant petition is directed at the Pulaski County Circuit Court, the Estate, the plaintiff below, has filed a brief with this court in support of the circuit court's continued exercise of jurisdiction. . The State defendants were subsequently dismissed from this action. . The Estate filed two additional amendments to the complaint. In the first one, it pled additional facts in support of its claim that the Act was unconstitutional. In the second one, the Estate clarified that it was seeking punitive damages only from CFS and Freeney. . In its "Conclusion” of the brief filed with this court, the Estate alternatively suggests that this court could sever the constitutional challenges and allow those to be heard and determined first by the circuit court. It cites no authority for such a proposition.

ANNABELLE CLINTON IMBER, Justice. | petitioner Barrett Cato petitions this court for a writ of prohibition or, in the alternative, a writ of certiorari, to prevent the Craighead County Circuit Court from exercising jurisdiction over him in an underlying tort case. The plaintiff in the underlying case, Kevin Lawrence, has filed a responsive brief. At issue is the constitutionality of Arkansas Code Annotated section 12-62-403 (Repl.2003), which reads as follows: “No person belonging to the organized militia shall be served with any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty.” Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(3) (2009). We grant the writ of certiorari. The facts are not in dispute. Lawrence filed his complaint in the Craighead County |2Circuit Court on July 12, 2007, naming Barrett Cato and Debra Haggard as defendants. He alleged that both he and Cato were visitors in Haggard’s residence on July 15, 2005, when Cato fired a gun, striking Lawrence in the abdomen. Lawrence alleged that Cato negligently discharged the weapon, failed to handle or maintain it in a safe manner, and failed to use ordinary care; he further alleged that Haggard failed to monitor the activities at the residence. He sought compensatory damages as well as exemplary and punitive damages in the amount of $250,000, alleging that Cato had acted willfully, wantonly, and in reckless disregard of his rights. Lawrence amended his complaint on November 6, 2007, adding Debra Hale, the renter of the residence owned by Haggard, as a defendant. On November 7, 2007, Lawrence filed a motion to extend time for service as well as an affidavit detailing his unsuccessful efforts to locate both Cato and Haggard. The circuit court entered an order on November 8, 2007, extending the time to serve all defendants for an additional 120 days, up to March 6, 2008. On November 19, 2007, Cato was served with a summons and the amended complaint while on uniformed duty with the Arkansas National Guard at the Prescott Armory. He filed a motion to dismiss the amended complaint on December 6, 2007, asserting that the service of process was insufficient as it violated section 12-62-403. Cato sought dismissal in accordance with Arkansas Rule of Civil Procedure 12(b)(2), (4), and |⅞(5), and alleged that Lawrence’s failure to properly serve him rendered the circuit court without jurisdiction. Lawrence filed a response to Cato’s motion to dismiss on January 22, 2008, admitting that service of process was insufficient at that time but requesting the court hold the motion in abeyance until the expiration of the time for service on March 6, 2008. Also on January 22, 2008, Lawrence filed an affidavit for warning order, stating that diligent inquiry had been made and that Cato’s whereabouts were unknown. Specifically, the affidavit alleged that Cato had been deployed to active military duty in Iraq since the date on which he was served at the Prescott Armory but that the Arkansas National Guard refused to di vulge information on his exact whereabouts. The clerk of the circuit court issued a warning order on the same day, directing Cato to appear within thirty days of the date of first publication and warning that he may face entry of judgment by default for failure to appear. On January 29, 2008, Lawrence amended his response to Cato’s motion to dismiss, arguing that the November 19, 2007 service of process at the Prescott Armory was sufficient under Arkansas Rule of Civil Procedure 4. Lawrence asserted that section 12-62-403 had been implicitly superseded by the passage of Amendment 80 to the Arkansas Constitution. Cato replied to the amended response on February 5, 2008, contending that there was no conflict between Rule 4 and section 12-62-403. Cato cited to Arkansas Rule of Civil Procedure 81(a), which makes the rules inapplicable where a statute creating a right, remedy, or proceeding specifically provides a different procedure. He argued that section |412-62-403 provided a right for persons in the organized militia to be free from service of process while going to, remaining at, or returning from military duty. Cato filed a renewed motion to dismiss on February 22, 2008. He maintained that service of process by means of the warning order was also insufficient, in that Lawrence had failed to comply with the requirements of Rule 4(f). In his reply to Lawrence’s response to the renewed motion, Cato specifically alleged that Lawrence’s affidavit for warning order failed to set forth facts demonstrating his efforts to locate Cato. Cato further alleged that the fact that he had previously been personally served belied Lawrence’s claim that Cato’s whereabouts were unknown. The circuit court held a hearing on Cato’s motions to dismiss on April 28, 2008. After hearing arguments by counsel, the court orally denied Cato’s motion to dismiss, ruling that section 12-62-403 violated the separation-of-powers doctrine and that the November 19, 2007 service at the Prescott Armory was sufficient. The court further ruled that the service of process by warning order was insufficient. The court entered its written order on June 12, 2008, finding that it had in per-sonam jurisdiction over Cato and that he had been duly served with process in accordance with Rule 4. Because section 12-62^03 “has no available alternative procedure for service of process on such members of the organized militia,” the court ruled that it violated the separation-of-powers doctrine and Amendment 80 and was thus unconstitutional. The court granted Cato’s oral motion to stay further proceedings for a period of thirty days following his period of active duty, in accordance with |fiArkansas Code Annotated section 12-62-406 (Repl.2003). Cato filed his petition for writ of prohibition or certiorari in this court on January 2, 2009. He does not dispute the circuit court’s finding that the service of process by warning order was insufficient. He does assert error in the court’s ruling on the constitutionality of section 12-62-403. Cato urges this court to issue either writ in order to prevent the circuit court from exercising jurisdiction over him, as section 12-62-403 creates a substantive right to be free from service of process and therefore does not impede upon this court’s rulemak-ing authority. It is well settled that a writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 268, 253 S.W.3d 444, 446 (2007). In addition, the writ is appropriate only when no other remedy, such as an appeal, is available. Id. at 268, 253 S.W.3d at 447. Prohibition is a proper remedy when the juris diction of the lower court depends upon a legal rather than a factual question. Id. We confine our review to the pleadings in the case. Id. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id. Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Id. They should issue only in cases of extreme necessity. Id. This court has repeatedly stated that we will not issue a writ of prohibition for something that has already been done. Allen v. Circuit Court of Pulaski County, Ninth Div., 2009 Ark. 167, at 9, 303 S.W.3d 70 (citing Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam)). It is clear to this court that the circuit court has already acted on this matter by denying Cato’s motions to dismiss. Accordingly, relief in the form of a writ of prohibition does not lie. See id. Nonetheless, this court has, on occasion, treated a writ of prohibition as a writ of certiorari. Conner v. Simes, 355 Ark. 422, 428, 139 S.W.3d 476, 479 (2003). We have explained that the writ of prohibition cannot be invoked to correct an order already entered, but where the lower court’s order has been entered without or in excess of jurisdiction, we will carve through the technicalities and treat the application for a writ of prohibition as one for certiorari. Id. Consistent with this practice, Cato has alternatively requested a writ of certiorari. The standards for determining the propriety of a writ of certiorari are well settled in Arkansas. Id. A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. Id. at 428, 139 S.W.3d at 480. A writ of certiora-ri lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Id. We have said that a writ of certiorari is a remedy used to quash irregular proceedings. Lenser v. McGowan, 358 Ark. 423, 427, 191 S.W.3d 506, 508 (2004). We hold that Cato is entitled to relief in the form of a writ of certiorari. As a threshold matter, we reject the circuit court’s conclusion that section 12-62-403 is unconstitutional. Section 12-62-403 provides a substantive right to members of the organized militia to be exempt from civil process while going to, remaining at, or returning from any place where they may be required to attend for military duty; therefore, it is not a procedural statute and does not violate the separation-of-powers doctrine. The separation-of-powers provisions of the Arkansas Constitution are found in article 4 and provide as follows: The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted. Ark. Const, art. 4, §§ 1, 2. Additionally, section 3 of amendment 80 of the Arkansas Constitution provides that “[t]he Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.” Ark. Const, amend. 80, § 3. It is well settled that there is a presumption of validity attending every consideration |sof a statute’s constitutionality. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 4, 308 S.W.3d 135 (citing Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007)). Every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. Id. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it. Id. When possible, we will construe a statute so that it is constitutional. Id. In determining the constitutionality of statutes, we look to the rules of statutory construction. Id. When construing a statute, the basic rule is to give effect to the intent of the legislature. Id. (citing Rose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005)). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. In analyzing the constitutionality of statutes in accordance with the separation-of-powers doctrine, this court has recently set forth a bright-line rule: “[S]o long as a legislative provision dictates procedure, that provision need not directly conflict with our procedural rules to be unconstitutional. This is because rules regarding pleading, practice, and procedure are solely the responsibility of this court.” Johnson, 2009 Ark. 241, at 7, 308 S.W.3d 135 (citing Ark. Const. amend. 80, § 3). Under our holding in Johnson, the only question that need be |9asked is whether the challenged legislation dictates procedure. If the legislation bypasses our rules of pleading, practice, and procedure by setting up a procedure of its own, then it violates the separation-of-powers doctrine. Id. In distinguishing between substantive and procedural law, this court has stated as follows: The boilerplate definition of substantive law is “[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of parties,” while procedural law is defined as “[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419-20 (2007) (quoting Black’s Law Dictionary 1443, 1221 (7th ed.1999)). Section 12-62-403 is substantive legislation because it creates a right for members of the organized militia; specifically, it grants them an exemption from civil process while going to, remaining at, or returning from any place where they may be required to attend for military duty. In other words, section 12-62-403 bars the application of the usual ser-viee-of-process procedures, found in Rule 4, to members of the organized militia at such times. It does not, however, bypass our rules of pleading, practice, and procedure by setting up an alternate procedure for having a right or duty judicially enforced. See Johnson, supra. Rather, section 12-62-403, as the title of the statutory subtitle suggests, grants a “privilege” to members of the organized militia serving on military duty. Moreover, this court has long held that matters of public policy are generally within |inthe purview of the legislature. The resolution of questions of policy “is addressed in a democracy to the policy-making branch of government, the General Assembly, and it is not for the courts to make a statute say something that it clearly does not.” King v. Ochoa, 373 Ark. 600, 602, 285 S.W.3d 602, 604 (2008). We hold that the statute at issue here, insofar as it provides for members of the organized militia a right not granted to those to whom the statute does not apply, is rooted in public policy. Other jurisdictions have held similarly. See, e.g., Murrey v. Murrey, 216 Cal. 707, 16 P.2d 741 (1932); Nw. Cas. & Sur. Co. v. Conaway, 210 Iowa 126, 230 N.W. 548 (1930); Land Title & Trust Co. v. Rambo, 174 Pa. 566, 34 A. 207 (1896). To hold that the General Assembly’s enactment of section 12-62-403 was an impediment to this court’s rulemaking authority would be to impede upon the legislature’s policy-making authority. This we will not do. We note the circuit court’s concern that section 12-62-403 appears to provide no alternative procedure by which members of the organized militia may be timely served with civil process. In 2003, however, the General Assembly passed the Arkansas Soldiers’ and Airmen’s Civil Relief Act, codified at Arkansas Code Annotated sections 12-62-701 through 12-62-718 (Repl.2003). The Act is applicable to a soldier, airman, or the spouse of a soldier or airman of the Arkansas National Guard who is ordered into the active military service of the State of Arkansas by the Governor for a period of more than 180 continuous days, under either state law or the provisions of Title 32 of the United States Code. Ark.Code Ann. § 12-62-704. Under the Act, a statute of limitations may be tolled | nfor reason of the military service of a plaintiff or defendant: The period of military service is not included in computing any period limited by law, rule, or order for bringing an action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his or her heirs, executors, administrators, or assigns, whether the cause of action or the right or privilege to institute the action or proceeding has accrued before or during the period of military service. Id. § 12-62-712. Pursuant to this statute, the exemption from civil process granted to members of the organized militia in section 12-62-403 will not affect the ability of a plaintiff to timely institute suit. For these reasons, we hold that section 12-62-403 is constitutional. It is substantive legislation and thus does not violate the separation-of-powers doctrine. The circuit court’s ruling to the contrary and its denial of Cato’s motion to dismiss were erroneous on the face of the record. Furthermore, because the parties do not dispute that service of process was improper under section 12-62-403, the circuit court’s continued exercise of jurisdiction over Cato is a plain, manifest, clear, and gross abuse of discretion. Thus, Cato has established that he meets the first requirement for a writ of certiorari. See Conner, supra. We further hold that Cato is without an adequate alternative remedy, as the circuit court’s refusal to grant his motion to dismiss was not a final, appealable order. See Jordan v. Circuit Court of Lee County, 366 Ark. 326, 332, 235 S.W.3d 487, 492 (2006). Moreover, this court has held that we will not grant writs of certiorari in situations where the result would effectively enforce piecemeal appellate review. Id. As in Jordan, this case is an example of “the precise situation where a failure to grant the writ would result in piecemeal litigation and, thus, the only adequate remedy is this writ.” Id. (emphasis in original). The effect of our decision today on the constitutionality of section 12-62-403 is that Lawrence’s service of process on Cato was wholly invalid. Therefore, the circuit court was without jurisdiction over Cato. See, e.g., Raymond v. Raymond, 343 Ark. 480, 484, 36 S.W.3d 733, 735 (2001) (noting well-settled Arkansas law that service of valid process is necessary to give a court jurisdiction over a defendant). “We will not send back a case that should not have been allowed to proceed in the first place, let the circuit court decide the case, and then wait for it to be appealed again.” Jordan, 366 Ark. at 333, 235 S.W.3d at 492. Because the circuit court acted in excess of its jurisdiction and committed a plain, manifest, clear, and gross abuse of discretion, and because Cato is left without an adequate alternative remedy, we hold that relief in the form of a writ of certiorari is appropriate. Writ of prohibition denied; writ of cer-tiorari granted. . The record reflects that Hale and Haggard may be the same person. . Because we agree with Cato's arguments pursuant to article 4 and amendment 80 of the Arkansas Constitution, we need not address his argument that the issue falls under the Rule 81(a) exception to the applicability of the civil procedure rules. See Ark. R. Civ. P. 81(a) (2009).

JIM HANNAH, Chief Justice. 11 McCourt Manufacturing Corporation (the Corporation) appeals a judgment entered on a jury verdict in favor of Dave Rycroft, a former employee. The judgment awarded Rycroft $12,498.15 in unpaid commissions and a statutory penalty. The Corporation asserts that the jury verdict is not supported by substantial evidence and that the circuit court erred in submitting to the jury the question of whether appellee Dave Rycroft satisfied the penalty requirements of Arkansas Code Annotated section 11-4-405 (Repl. 2002). The Corporation further alleges that the circuit court erred in finding that the accrual of penalty in this case extended beyond the sixty-day period set out in Arkansas Code Annotated section 11-4-405(a)(2). Additionally, the Corporation asserts that the circuit court erred pin failing to instruct the jury on its waiver and estoppel defenses. We hold that the circuit court erred in submitting to the jury the question of whether Rycroft satisfied the penalty requirements of section 11-4-405. Because we reverse the circuit court on this first issue, we need not address the second issue regarding the sixty-day period. We affirm the circuit court’s refusal to instruct the jury on the Corporation’s affirmative defenses of estoppel and waiver and the award of $12,498.15 for commissions due by Rycroft. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(e). This case was originally appealed to the court of appeals. See McCourt Mfg. Corp. v. Rycroft, 102 Ark. App. 272, 284 S.W.3d 84 (2008). The court of appeals held that the circuit court erred in denying the Corporation’s motion for directed verdict on application of the penalty, rendering the issue of whether the accrual of the penalty could be expended beyond sixty days moot. The court of appeals affirmed the award of $12,498.15 in commissions due Rycroft and the circuit court’s refusal to instruct the jury on the Corporation’s affirmative defenses of estoppel and waiver. The case comes to this court by way of a petition for review. When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). Rycroft was hired in March 2005 to supervise sales at the Corporation. Rycroft alleges that Charles McCourt (McCourt) offered him wages comprised of a salary plus .5% | ¡¡commission on sales, and that he accepted that offer. McCourt denies having agreed to any commission. Commissions at the Corporation were paid quarterly, and the first quarter ended a few days after Rycroft was hired. He received no commission check at that time and said nothing because he had only worked a few days. However, at the end of the next quarter in June, Rycroft again received no commission check. He spoke to his immediate supervisor, Mark Price, who told him to speak with McCourt because McCourt had hired Rycroft. Ry-croft alleges that McCourt denied that an agreement had been made to pay a commission. Rycroft received no commission in June and was given no promise that a commission would be paid. Rycroft testified that he understood something might be done about the commissions in the future. He remained with the Corporation until January 16, 2006. On January 23, 2006, Rycroft’s attorney had a letter hand delivered to the Corporation by messenger demanding payment of the commission. The messenger was unable to identify the “guy” she hand delivered the letter to; however, she was able to testify that she did not deliver it to Mark Price, Rycroft’s immediate supervisor, or Charles McCourt. There was no proof the letter was delivered to Judy Joyce, who was responsible for the Corporation’s payroll. Suit was filed in February 2006. The circuit court entered final judgment awarding Rycroft a judgment in the principal amount of $12,498.15, plus [4prejudgment and postjudgment interest. Rycroft was further awarded a penalty of $164.38 per day under Arkansas Code Annotated section 11-4-405 beginning January 17, 2006, and continuing until the $12,498.15 is paid. Procedural Bar As an initial issue, we address Ry-croft’s assertion that the Corporation is procedurally barred from challenging the jury verdict because, while it moved for a directed verdict at the close of all the evidence, it did not move for a directed verdict at the close of the plaintiffs case. Rycroft cites us to Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994), and Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996). Beginning in Stroud, this court required a directed-verdict motion at the close of the plaintiffs case, in addition to a directed-verdict motion at the close of all the evidence, and relied upon Arkansas Rule of Civil Procedure 50 for that requirement: In order to preserve their sufficiency of the evidence argument for this court’s consideration, a motion for a directed verdict must have been made at the close of the plaintiffs case-in-chief, and again at the conclusion of all the evidence. ARCP Rule 50(a) and (e). Stroud, 317 Ark. at 142, 875 S.W.2d at 853. Clowney and Houston v. Knoedl, 329 Ark. 91, 95, 947 S.W.2d 745, 747 (1997), relied upon Stroud and stated that a motion for a directed verdict must be made not only at the close of all the evidence, but also at the close of the plaintiffs case. Rule 50(a) provides: “A party may move for a directed verdict at the close of the evidence offered by an opponent.... A party may also move for a directed verdict Fat the close of all the evidence.” Rule 50(e) provides, in pertinent part, that where a party challenges the sufficiency of the evidence, a party must move for a directed verdict at the close of all the evidence or the issue is waived on appeal. Stroud, Cloumey, and Houston are inconsistent with Rule 50. As noted, the Corporation moved for a directed verdict at the close of all the evidence. The Corporation thus complied with Rule 50. To the extent that Stroud, Cloumey, and Houston make a directed-verdict motion mandatory at the close of the plaintiffs case to preserve a sufficiency-of-the-evidence argument, they are overruled. Section 11-4-105 At issue is whether Rycroft satisfied the requirements of section 11-4-405. We are thus called upon to interpret a statute: Reviewing issues of statutory interpretation, this court first construes a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P., 374 Ark. 489, 288 S.W.3d 627 (2008). When the language of a statute is plain and unambiguous, conveying a clear and definite meaning, the court does not resort to the rules of statutory construction. Id. If there is an ambiguity, the court looks to the legislative history of the statute and other factors, such as the language used and the subject matter involved. Id. The court strives to reconcile statutory provisions relating to the same subject to make them sensible, consistent, and harmonious. Id. City of Jacksonville v. City of Sherwood, 375 Ark. 107, 113, 289 S.W.3d 90, 94-95 (2008). Section 11-4-405 originated in Act 61 of 1889 and was last amended in Act 210 of |,;1905. Under the original act, the section applied only to railway companies. “The statute was passed to prevent railroads thus delaying the payment of their debts to their employees, especially the helpless class dependent upon their labor for their daily sustenance.” St. Louis Sw. Ry. Co. v. Brown, 75 Ark. 137, 138, 86 S.W. 994, 995 (1905). Act 210 of 1905 extended the statute to cover “all companies and corporations doing business in this State.” In Wisconsin & Arkansas Lumber Co. v. Reaves, 82 Ark. 377, 379, 102 S.W. 206, 207 (1907), handed down after the passage of Act 210, this court stated as follows: [T]o protect the employees of corporations, many of whom are day laborers and dependent on their daily wages for support and maintenance, and who are not in a position to enter into expensive litigation, the law seeks to compel payment without suit by making it in the interest of the corporation to promptly pay the unpaid wages of the discharged employee. Section 11-4-405 provides in pertinent part as follows: (a)(1) Whenever any railroad company or corporation or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad bridge shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of the servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of the discharge or refusal to longer employ. (2) Any servant or employee may request of his foreman or the keeper of his or her time to have the money due him or her, or a valid check therefor, sent to any station where a regular agent is kept. If the money or a valid check therefor does not reach the station with in seven (7) days from the date it is so requested, then, as a penalty for the nonpayment, the wages of the servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid. However, the wages shall not continue more than sixty (60) days unless an action therefor shall be commenced 17within that time. (b) This section shall apply to all companies and corporations doing business in this state and to all servants and employees thereof. Any servants or employees who shall hereafter be discharged or refused further employment may request or demand the payment of any wages due and, if not paid within seven (7) days from discharge or refusal to longer employ, then the penalties provided in subdivision (a)(2) of this section for railway employees shall attach. This court has declared this statute to be “penal in the extreme.” Rousseau v. Ed White Junior Shoe Co., 222 Ark. 240, 243, 258 S.W.2d 240, 241 (1953); see also St. Louis, Iron Mountain & S. Ry. Co. v. McClerkin, 88 Ark. 277, 281, 114 S.W. 240, 241 (1908) (stating that the statute being “highly penal” means strict compliance is required). Further, because “the penalty is so obviously disproportionate to the actual injury it has always been the policy of the law to hold the plaintiff to a strict compliance with the statutory conditions.” Id., 258 S.W.2d at 243. “The statute is a penal one and is imposed only in favor of those who come strictly within its letter.” H. & P. Mfg. Co. v. Hanson, 222 Ark. 566, 569, 261 S.W.2d 800, 802 (1953). A recovery of the penalty is denied the employee unless “he has made a distinct demand for the payment of his wages in accordance with the terms of the statute.” St. Louis-San Fransisco Ry. Co. v. De Voe, 152 Ark. 38, 39, 237 S.W. 433, 433 (1922). “[N]o penalty accrues unless he requests his foreman or the keeper of this time to have the money due him, or a valid check therefor, sent to a specified station where a regular agent is kept, and the money or check does not reach such station within seven days | Rfrom the date it is requested.” St. Louis, Iron Mountain & S. Ry. Co. v. Bailey, 87 Ark. 132, 136, 112 S.W. 180, 181 (1908). “[D]e-mand shall be made either to the superior who has immediate supervision over the discharged employee or the one who keeps his time.” Bush v. Coleman, 131 Ark. 379, 381, 199 S.W. 87, 88 (1917). A demand made upon a supervisor who is not the foreman is insufficient. McClerkin, 88 Ark. at 281, 114 S.W. at 242. “Nothing can be taken by intendment to show compliance with statutes of this kind.” Id., 114 S.W. at 242. Rycroft bore the burden of proving the elements of his claim for the penalty. Rousseau, 222 Ark. at 242, 258 S.W.2d at 241; Missouri Pac. R.R. Co. v. Warren, 162 Ark. 199, 204, 258 S.W. 130, 131 (1924). The evidence Rycroft offered showed that he delivered a demand to the Corporation within the statutory seven-day period after his discharge. However, he failed to provide any evidence to show that the demand was received by his foreman (Price), or McCourt, or the keeper of his time (Joyce) within seven days as required by section 11-4-405. Yolanda Bell, the messenger, testified that she took the demand letter into the Corporation’s offices and initially found no one there. She called out “Hello, Hello,” and a man came out of an office to greet her. Bell told the man what the letter was, who she was, and she testified that he accepted it. She did not know | sto whom she delivered the letter, but upon seeing photographs of Price and McCourt, she was sure she had not delivered the letter to either of them. Price testified that he first saw Rycroft’s demand letter when it was shown to him by McCourt after McCourt’s return from a business trip about February 24 to February 28. McCourt testified that he was out of town at the time the letter was delivered and that while someone in the Corporation did receive it, no one was ever identified as having received it. Rycroft failed to offer any substantial evidence to show that he strictly complied with section 11-4-405 by demanding his earned but unpaid wages from his foreman or keeper of time within seven days. The circuit court erred in refusing to grant a directed-verdict motion on the issue of the application of the penalty provisions of section 11-4-405. Affirmative Defenses of Waiver and Estoppel The Corporation alleges that Ry-croft is precluded from pursuing the commission because he waived any right to the commission. Waiver and estoppel were asserted as affirmative defenses, and the Corporation asserts the circuit court erred in refusing to instruct the jury on waiver and estoppel. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Williams v. First Unum Life Ins. Co., 358 Ark. 224, 229, 188 S.W.3d 908, 911 (2004). Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent of forever depriving him of the benefits of the right, and it may occur when one, with full knowledge of the Immaterial facts, does something which is inconsistent with the right or his intention to rely upon it. City of Fort Smith v. McCutchen, 372 Ark. 541, 544, 279 S.W.3d 78, 81 (2008). The Corporation argues that once Rycroft asserted the right to a commission, and learned that it would not be paid, he waived any right to the commission by continuing in his at-will employment. Ry-croft testified that he never gave up his right to the commission and remained with the Corporation because he had financial obligations to meet and had to work. At the time Rycroft complained in June 2005 of not receiving his commission check, any commission that was owed him was then due. Nothing in the record indicates that Rycroft waived his right to a commission already due. Further, according to Ry-croft, McCourt made comments that caused Rycroft to believe the issue of the commissions might yet be addressed. Nothing shows that Rycroft abandoned his claim to commissions. There was no basis in the evidence to support an instruction to the jury on waiver and estoppel. Rycroft has filed a motion with this court requesting costs in the amount of $600 for work in abstracting material that the Corporation should have abstracted. That motion is granted. We affirm the award of $12,498.15 for commissions due Rycroft and reverse the judgment awarding penalties under Arkansas Code Annotated section 11-4-405. Affirmed in part; reversed in part. Motion for costs granted. . Neither party raises the issue of whether commissions constitute wages under Arkan sas Code Annotated section 11-4-405; therefore, we will treat commissions as wages for purposes of this appeal. . We note that Stroud, Clowney, and Houston were decided on grounds other than the defendant's failure to make a directed-verdict motion at the close of the plaintiff's case. Thus, the statements were merely dicta. . At trial, Bell testified that she did not know whether she delivered the letter on January 23, 2006, or on January 24, 2006; however, she was sure she delivered it on a Monday morning. January 23, 2006, was a Monday morning.

KENNETH S. HIXSON, Judge 11Appellant Lorenzo Harrison appeals after he was convicted by a St. Francis County jury of murder' in the first degree and possession of a firearm by certain persons. He was sentenced to serve 300 months’ imprisonment for murder in the first degree and 60 -months’ imprisonment for possession of a firearm by certain person, both to be served concurrently. On appeal, appellant contends that (1) the trial court’s denial of his motion to sever resulted in prejudicial error; (2) the trial court erred in denying his motions for.directed verdict as to the offense of murder in the first degree; and (3) the trial court erred in refusing to submit his proffered jury instruction on the “choice of evils” defense. We affirm. On July 4, 2009, appellant shot the victim, Joe Evans (Joe), during a “block party” in Hughes; Arkansas. Appellant was later arrested and charged with murder in the first degree, a Class Y felony, under Arkansas Code Annotated section ,5-10-102 (Repl. 2013), and with possession of firearm by certain persons, a Class D felony, under Arkansas Code 12Annotated section 5-73-103. A jury trial was held on August 5-8, 2015, and the following facts were introduced at trial. ■ There was testimony that on the day of the incident, the victim, Joe Evans; his brother, Roosevelt' Evans (Roosevelt); and his cousin, Tavarious Speed (Speed) "were all together' and planning to attend the block party. The three men went to a nearby liquor store; Joe and Roosevelt went inside the store, but Speed stayed outside. Vanessa Harrison (Vanessa); appellant’s wife, was also in the liquor store with other women. While Roosevelt and Joe were inside, Joe got into a heated verbal argument with Vanessa. Roosevelt testified that as Vanessa and the other women were leaving the store, Vanessa said she was going to call her husband, appellant, to get him to do something to Joe. Shortly thereafter, Roosevelt and Joe left the liquor store and were joined by Speed. As the three men were walking around a corner en route to the block party, appellant pulled up and got out of his car with a gun. Roosevelt and Speed each testified that appellant pointed and fired the gun at Joe and that Joe ran away. Speed testified that he was then hit in the head by someone with a gun and was “knocked out.” Roosevelt testified that after Joe ran away, appellant pursued him and continued to shoot at him. Roosevelt followed and remained within twenty feet of the pursuit. At some point, appellant caught up with Joe. According to Roosevelt, at that point, Joe was facing appellant with his hands up begging for him to not shoot, but appellant shot him. Appellant left, and Roosevelt ran to his brother’s aid, picked him up, and carried him to a nearby car to take him to a hospital. An ambulance was called, and at some point between Hughes and West Memphis, the car was met by an ambulance. Joe was transferred to the ambulance and transported to a hospital |ain Memphis, Tennessee. However, Joe died as a result of his injuries en route to the hospital. Dr. Frank Peretti testified that Joe had been shot twice, the fatal shot having been in the abdomen. After the State rested its case, appellant moved for a directed verdict on the charge of murder in the first degree. Appellant specifically argued that the State failed to prove that he had purposely caused the death of the victim and that Roosevelt’s testimony was inconsistent. The trial court denied the motion. There were two other eyewitnesses to the incident who testified for the State. Tamara Robinson (Robinson) and Roslyn Rucker (Rucker) testified that they were in a car approaching the block party when they saw appellant cross the street in front of them and walk toward Joe with a gun pointed at him. They testified that Joe backed away from the situation with his hands up in the air. Rucker further testified that she saw Joe mouth the words “put the gun down. Don’t shoot me.” Seconds later, appellant fired his gun toward Joe. Robinson and Rucker testified that they saw Joe turn and run and that appellant chased him. Robinson and Rucker lost sight of appellant and Joe. After they drove around the block, Robinson and Rucker saw Roosevelt carrying Joe to a nearby car. There were two other witnesses to the incident who testified for appellant. Vanessa, appellant’s wife, and her sister, Felicia McDonald (Felicia), testified to a different version of events. Vanessa and Felicia testified that they were in the liquor store with Joe and Speed. Vanessa testified that she did not see Roosevelt in the store. Vanessa and Felicia testified that Joe confronted Vanessa and threw ice at her while they were in the store. After they left and walked around the block, they ran back into Joe and Speed. At that point, Joe 14threw some type of a firework at Vanessa. The women testified that Joe and Speed knocked Vanessa to the ground and punched her repeatedly. Vanessa testified that she was hit in the side, back, and face. Vanessa further testified that appellant arrived during the attack, screamed at the men to get off of her, fired a warning shot, hit Speed in the back of the head with the pistol, and began tussling with Joe. Vanessa testified that while the men were fighting, Felicia grabbed her and that they left the scene. Felicia testified somewhat differently in that she said she never saw appellant and that she simply grabbed Vanessa and took her home as soon as she could get Vanessa away from Joe and Speed. Felicia additionally stated that she called the police to report the incident. Lieutenant Tommy Watlington responded to Felicia’s call and took Vanessa’s statement. Lieutenant Watlington testified that he did not see any physical signs that Vanessa had been involved in a fight and confirmed that he did not call for any medical assistance. After the appellant rested, he renewed his motion for a directed verdict, and the trial court denied his motion. The State then called Chief Deputy Gene Wingo as a rebuttal witness. Chief Deputy Wingo testified that he went to appellant’s home to interview him the day after the incident. Vanessa had told him that she did not know the location of her husband. However, after searching the home with permission, appellant was locate ed in the attic. At the conclusion of the State’s rebuttal evidence, appellant did not renew his motion for a directed verdict. The jury found him guilty of both charges. Appellant waived jury sentencing and, in agreement with the State, accepted an aggregate term of twenty-five years’ imprisonment. This appeal followed. | J. Sufficiency of the Evidence Although appellant does not address the denial of his motion for directed verdict until his second point on appeal, we must address such a challenge first for purposes of double jeopardy. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Appellant does not contest the sufficiency of the evidence to support his conviction for possession of a firearm by certain persons; rather, he argues that the evidence was insufficient to support his conviction for murder in the first degree. Appellant more specifically argues that the evidence was insufficient to prove that he purposely caused the death of victim. The State responds that appellant’s challenge is not preserved for review on appeal, and we agree. Arkansas Rule of Criminal Procedure 33.1 (2016) requires that an appellant move for a directed verdict at the close of the State’s evidence and again at the close of all the evidence, and that the failure to do so waives a challenge to the sufficiency of the evidence on appeal. See Dickey v. State, 2016 Ark. 66, 483 S.W.3d 287; Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005). In Dickey, our supreme court specifically held that the failure to renew a motion for directed verdict after the close of the State’s rebuttal testimony waived the issue of sufficiency of the evidence. Id. Our supreme court further explained that a renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed against the criminal defendant. Id. Here, although the appellant initially made his motion for a directed verdict, he failed to renew his motion after the close of the State’s rebuttal testimony. Thus, appellant failed to preserve his challenge to the sufficiency of the evidence for appellate review. | fiIL Motion to Sever Appellant filed a pretrial motion to sever his count for murder in the first degree from his count for possession of a firearm by certain persons'. In his motion, he argued that the charges against him were not “part of a single scheme or plan” as required under Arkansas Rule of Criminal Procedure 22.2(a). After a hearing, in which appellant additionally argued that he would be prejudiced because the jury would be presented with evidence that he had a prior criminal conviction, the trial court denied the motion. Appellant argues on appeal that this was error. A defendant has a right to a severance when two or more offenses have been joined solely on the ground that they are of the same or similar character. Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635. Otherwise, granting or refusing a severance is within the discretion of the trial court, and the decision by the trial court will not be disturbed absent an abuse of discretion. Id. A severance motion may be denied if the two offenses were part of a single scheme or plan or if both offenses require the same evidence. Id. The issue of whether a possession-of-a-firearm-by-certain-persons charge should be severed from a murder charge is well settled. In Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), our supreme court explained that while possession of a firearm is a common element with murder perpetrated by means of a firearm, - the introduction of a conviction of a prior felony as required for a possession-of-a-firearm-by-certain-persons charge has nothing to do with the elements of proof required for murder in the first degree. Moreover, the presentation of a prior conviction to the jury runs the risk of prejudicing the trial of the joined offense to some degree. Id. Therefore, because the two offenses were not part of a 17single scheme or plan nor did they require the same evidence, the trial court erred in refusing to sever the two charges. In addition to error, however, appellant roust show some form of prejudice before we can disturb the ruling of the trial court. Watkins, supra. Our supreme court has declined to conclude that the joinder of a possession-of-a-firearm-by-certain-persons charge along with another felony charge constitutes prejudice by that fact alone in all instances. Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993). Instead, such cases are to be examined individually to determine if the presumption of prejudice has been overcome and whether the trial court abused its discretion. Watkins, supra. Our supreme court has previously held that the error was not prejudicial with the existence of one or more overriding factors, including (1) the overwhelming evidence of guilt; (2) cross-examination of the defendant on the prior conviction; and (3) a limiting instruction to the jury. Sutton, supra. Here, two of the overriding factors were present. Unlike in Sutton, where the evidence of guilt was characterized as “weak,” there was direct evidence of appellant’s guilt of murder in the first degree. Roslyn Rucker, Tamara Robinson, Tavarious Speed, and Roosevelt Evans testified to having observed appellant shoot directly at the victim. Rucker, Robinson, and Roosevelt testified that they saw appellant chase the victim. Additionally, Roosevelt testified that he saw appellant shoot and kill the victim. Therefore, there was overwhelming evidence of guilt. See Ferrell, supra (holding that the testimony of three eyewitnesses constituted overwhelming evidence); Watkins, supra (holding that direct evidence of guilt in the form of testimony in .addition to circumstantial forensic evidence was sufficient). Also, another Sutton factor was present. The trial court specifically ^instructed the jury that it “should not take the proof that the defendant has a felony conviction as proof of his guilt of murder.” Therefore, we hold that the error by the trial court was not prejudicial to appellant under the circumstances of this case and affirm the trial court’s ruling. After the trial court had denied appellant’s motion to sever the counts, the State introduced into evidence a certified copy of a statement executed by appellant in the prior offense pleading guilty to robbery and theft by receiving. Appellant renewed his objection and moved for a mistrial. However, appellant’s motion was denied. On appeal, appellant states as subheading b under this point on appeal that “[t]he trial court erred by denying the Appellant’s motion for mistrial 'after the prosecution introduced in front of the jury a certified copy of a police statement of the Appellant pleading guilty to prior offense.”" Although he outlines that the trial court denied his motion for mistrial, appellant fails to provide any argument, citation to any authority, or prayer for relief. We do not consider' arguments that are unsupported by convincing argument or sufficient citation to legal authority. Armstrong v. State, 366 Ark. 106, 233 S.W.3d 627 (2006); Watson v. State, 2016 Ark. App. 721, 478 S.W.3d 286. Thus, we affirm on this point' on appeal. III. “Choice of Evils” Jury Instruction Appellant finally argues that the trial court erred in failing to give his proffered AMI Crim. 2d 702 “choice of evils” jury instruction.' This defense is set forth in Arkansas Code Annotated section 5-2-604(a)(1), which provides that an offense is justifiable when the “conduct is necessary as an emergency measure to avoid an imminent public or private injury” and “[a]c-cording to ordinary standards of reasonableness, the desirability and urgency |flof avoiding the imminent public or private injury outweigh the injury sought to be prevented by the law proscribing the conduct.” Appellant argues that he was entitled to the instruction as a defense to the possession-of-a-firearm-by-certain-persons •charge because he received an alarming phone call from his wife that she was being verbally assaulted and needed to possess a firearm to “rescue her from ... .a perilous situation.” We review a trial court’s decision to give- or reject a jury instruction under an abuse-of-discretion standard. Clark v. State, 374 Ark, 292, 287 S.W.3d 567 (2008). A defendant is entitled to a jury instruction when it is a correct statement of law and there is some basis in the evidence to support giving the instruction. Prodell v. State, 102 Ark. App. 360, 285 S.W.3d 673 (2008). When the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully arid fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Id. On appeal, our role is not to weigh the evidence to determine if the justification instruction should have been given, but rather wé limit our consideration to whether there is any evidence tending to support the existence of a defense. Id. To preserve for appeal an objection to an instruction, the- appellant must proffer the proposed instruction to the trial court, include it in the record on appeal, and abstract it to enable the appellate court to consider it. Sipe v. State, 2012 Ark. App. 261, 404 S.W.3d 164. Furthermore, it is up to the movant to obtain a ruling in .order to preserve an" issue for appeal. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). Here, appellant failed to obtain a ruling from the trial court. When jury instructions were discussed, appellant requested AMI Crim. 2d 702, among other instructions. The trial |incourt stated that it was setting aside instruction 702 to turn its attention to AMI Crim. 2d 704. However, the trial court never revisited the instruction', nor did appellant request a ruling. Appellant even acknowledged that the trial court failed to reject the instruction when he proffered the instruction after the jury had already found him guilty and had been dismissed but before the record had been closed. Because appellant failed to obtain a ruling, he failed to preserve this issue on appeal for our review. See Hamm, supra. Thus, we affirm appellant’s convictions. Affirmed. Gruber, C.J., and Murphy, J., agree.

WAYMOND M. BROWN, Judge I lAppellant appeals from .the circuit court’s Febrüary 25, 2016 order disposing of the parties' multiple contempt motions. On appeal, she argues that (1) appellee should be responsible for the real-estate taxes on the marital home he received in the property-settlement agreement, (2) the circuit court’s flatware ruling was reversible error, (3) the circuit court erred in splitting the lion statues, (4) appellant is entitled to the full value of the Kubota tractor, (5) the circuit court erred in ruling on her contempt motion relating to appel-lee’s parental neglect without taking testimony, and (6)-the circuit court erred by denying .her motion for contempt for ap-pellee’s “harassing and annoying filings.” We affirm in part and reverse in part. The parties were divorced pursuant to a divorce decree entered on January 8, 2015. It was stated in the decree that the parties reached a “settlement compromise of all property |2rights and debt liabilities existing between them, which agreement the Court [found] to be fair, reasonable and equitable.” The agreement was “incorporated [therein] by reference.” Appellee filed the first motion for contempt on March 20, 2015. He stated therein that the parties had met and divided the property by agreement and put the agreement in writing,--but that a number-of items of personal property were removed from the marital home when appellant -vacated the premises. Of import to this appeal were two missing Railroad Baron side tables; appellee’s mother’s silver, which he inherited; appellee's half of the china; ap-pellee’s half of the silver-plated flatware; and two cast-stóne lion statues, which had been in front of the marital home. Appellant responded on March 26, 2015, denying all of appellee’s allegations and filing a counter-petition for contempt. She sought a contempt citation against appellee for allowing* their minor child, on March 17, 2015, to “sit unrestrained and unattended, on the rear of his convertible while [appellee] drove the vehicle ini the St. Patrick’s Day Parade in Little Rock, placing the child in danger and against the best interest in the child.” She also alleged that during a spring break visitation in Nassau, Bahamas, “the child became lost after [ap-pellee] placed the child, unattended, in a lazy river,’ causing the water park staff to search nearly half- an hour for the [appel-lee’s] whereabouts before locating him, again placing the child in danger and against the best interest of the child.” She also sought a contempt citation based on appellee’s refusal to surrender an “expensive oriental rug,” which she ^valued at $3,800.00, and a Kubota tractor, which “had been in continual use since its purchase in 2011 as a lawn tractor” and which she stated was designated to go with her, though she stated that it was “not part of the property specifically identified by. the Decree.” Appellee responded to appellant’s counter-petition on April 8, 2015, averring that while the minor child was allowed to ride on his vehicle in the parade, it was “at a walking pace, [and the child] was properly supervised by her father and Little Rock Police, along with 60 to 70 other vehicle participants.” He also averred that “the minor child was allowed to ride the ‘lazy river’ ride in the Bahamas in an inner tube in approximately 3 feet deep water and was properly supervised and in his view at all times, along with lifeguards[.]” Regarding the tractor, he asserted that “his farm, Moody Family Farm, LLC, purchased the Kubota tractor in May 2011 with funds from [appellee’s] mother and [appellant] has no interest” as the parties agreed that Moody Family Farm, LLC is a non-marital asset. He asserted that appellant gave him the oriental rug. Where else pertinent, appellee denied the allegations in appellant’s counterpetition for contempt. Appellee filed an amended motion for contempt on November 16, 2015, asserting that contrary to the divorce decree and settlement agreement, appellant had failed to pay the real-property taxes as ordered. Appellant filed a motion for contempt on December 18, 2015, asserting that appellee “through his counsel, continued] to make unreasonable demands that serve no legitimate purpose and [were] done in an effort to drive up legal fees and to harass and annoy the [appellant,]” in violation of the circuit court’s April 1, 2011 | ¿restraining order enjoining and restraining each party from “harassing the adverse party[.]” Ap-pellee responded on January 13, 2016,* denying her allegation. A hearing on the outstanding motions was held on February 18, 2016. Adrienne Griffis, an attorney from appellee’s counsel’s firm, testified to accompanying appel-lee and his decorator to inventory the home in December 2014. She saw “pieces of silverware packed away in storage” in a closet. They opened the storage and looked at the silverware, which was Boulenger, using the “flashlight setting” from appel-lee’s cell phone. She saw appellee attempt to take a picture of the silver flatware with his phone; he “said it didn’t come out.” No other pictures were taken, but she prepared an inventory that originated from appellant’s list, onto which they added. She noted premarital property in the inventory based on the parties’ assertions of the same. Cindi Hall, the parties’ interior designer, testified to assisting in inventorying the parties’ property in December 2014. She saw the “silver pieces in the marital home” in a closet in the back hallway. She thought Griffis tried to take a picture, but she knew Griffis took the silverware out and got the name and pattern. It was in a container and looked like a twelve-piece setting. She found the two Railroad Baron side tables in the garage. Appellee received four place settings of the bone Le-nox China, though he was supposed to receive | (¡six. The two cast stone lion statues were in front of the house when they did the inventory, but were gone after appellant vacated the premises. She testified that there were “pictures of everything” except the Railroad Baron side tables. “Nowhere on the list” did it say that appellee was to get the lion statues. Appellee testified that the June 11, 2013 order made appellant responsible for the property taxes on the residence from January 13, 2013, until further ordered and that the decree made appellant responsible for utilities ‘-‘and other expenses associated with the marital residence as previously ordered by this Court until she vacates the marital home.” He understood that to include real-estate taxes. He was awarded “any outstanding indebtedness on the residence inclusive of taxes and insurance” and that is why he “specifically added” language to the decree that appellant “would be responsible for what she was due” under the previous temporary order. He assumed he was responsible for any taxes due and owing “going forward” from when appellant vacated the home. He agreed to pay appellant $27,500 per month in child support while appellant was in the home, and the real-estate taxes were to be covered by appellant as part of that arrangement. Appellee believed that the two Railroad Baron side tables found in the garage were smaller and not the same side tables that had been in the master bedroom, which he asserted had doors on the front to store things, unlike the two side tables found in the garage. He [r,pulled down some boxes out of a closet in the home and gave them to Griffis and Hall. The silverware was in there. He asserted that “it was obvious that it had been hidden because it was the only box that was there that had anything in it.” Griffis and Hall counted the silver. He attempted to take a picture but it was too dark. They discussed the silver after appellant vacated the home; appellee could not find it. Appellant told him it was either in the secretary or the dresser in the living room; it was not in either piece of furniture. There was no more discussion about the silver. He had no receipts for the silver he alleged was purchased during the marriage; several were wedding gifts and “others [appellant] bought to complete the set.” Appellee said that appellant took pictures of everything for homeowner-insurance purposes. There were two cast stone lion statues on the front porch that were not mentioned on the inventory list because he “expected them to stay with the home”; “[a]nything that wasn’t on the list was supposed to stay at the house.” He admitted that the divorce decree “does not say anything not on the list is supposed to stay at the house”; he averred that it was an unwritten agreement between the parties. Appellant testified that she had not paid the taxes on the house due for 2014 and had not paid any portion of the taxes for 2015. She did not think she was responsible for the 2014 and 2015 real-estate taxes “because there were two areas of the decree that state that it was [appellee’s] responsibility.” However, she admitted that the court had previously ordered her to pay the real-estate taxes and that “she was not getting the $27,500 a month just to pay the real estate tax” but “for child support.” [7She testified that she “made the first draft of the property list [herself]”; she denied listing the Boulenger silver on her original list. She asserted that the silver “did not exist” as the parties “never had any good silverware.” She denied that there were other Railroad Baron tables. She noted that she took the bed linens that went with the beds; they had not “put it in writing but [they] agreed in the property division that the linens that went with the beds would go with the beds.” She stated that she did take the two cast stone lions, but averred that they agreed she would take the lions and the patio umbrellas in exchange for not having to divide up the “extensive” list of patio furniture. She testified that the Kubota tractor was purchased during the marriage with an American Express card held by the parties — not with inheritance money of Moody Farms— and that- she helped pick it out. It was to be used at the marital residence, which was eight acres in size, by a groundskeeper they had hired a month prior to the purchase. She wanted the value of the tractor, which she believed was valued at $17,000; it was purchased for $17,160. The circuit court entered an order on February 25, 2016, making the following findings: a. Boulenger stainless silver flatware. The Plaintiff claims that the silverware never existed and that they had no silver flatware. The Defendant claims that they purchased the flatware during the marriage. Ms. Cindy Hall, the interi- or decorator, said that she saw the flatware in a box in a closet when the parties were dividing the assets. She then testified that after the Plaintiff had vacated the premises and removed her property, that there was no Boulenger silver flatware left at the home. b. The Court concludes that Ms. Hall is a credible witness and has no vested interest in this case. The Court finds that either the Plaintiff removed the flatware or it was lost while in her control. The Court orders that Plaintiff reimburse the Defendant the sum of $8,050.00 forthwith representing one-half of the value placed 18on the flatware; or if the flatware is located in her possession, in lieu of payment, that she may return one-half to the Defendant. Neither Plaintiffs Exhibit 6 nor Defendant’s Exhibit 1 divided the flatware. f. Lenox China. Originally, the parties had a 12-place setting. The [Plaintiff] took eight of the sets leaving the Defendant four. The Plaintiff is 'to return two place settings of bone Lenox China to the Defendant forthwith. g. Kubota tractor. This property was not mentioned in the Divorce Decree nor in the list of property to be divided. The Kubota tractor will remain with the Defendant at the; marital home as it was purchased for the marital home. Further, paragraph 16(B)6 states that all personal property currently .in his possession shall become his sole and separate property. Therefore, the Plaintiffs claim fails. h. Lions. These items were not listed on the property lists. The parties will each receive, one lion statue. The Defendant will be responsible of having one of the lions delivered to him at his expense. The Defendant can select the lion he wants. While noting that appellant had filed a motion for contempt involving an Oriental rug, the circuit court did not address the matter, stating that “the rug was never discussed" in the hearing. Regarding the taxes owed on the home, the circuit court stated: 23. There appears to be a conflict within the Divorce Decree, but the Decree specifically states in paragraph 16(B)(1) that the Plaintiff was given until February 1, 20Í5 to vacate the residence. The Decree made a specific reference to the previous Orders of the Court that the Plaintiff be responsible for the utilities and other expenses associated with the marital residence until she vacates the marital home. 24. The Court concludes that the parties negotiated a settlement whereby the Plaintiff would be responsible for the cost of the marital home while she remained living there. The parties specifically referenced the earlier Orders whereby the Plaintiff was responsible for real estate taxes as long as she received the $27,500.00 per month support. The Court finds that the Plaintiff is responsible for the payment of the 2014 real estate taxes in the amount of $13,059.20 and one month of the 2015 real estate taxes which is $1,088.26 for a total amount of $14,147.46. This amount shall be paid to the Defendant forthwith and he will be responsible for the direct payment of the taxes. This timely appeal followed. |flI. Standard of Review Although we review traditional equity cases de novo, the test on review is whether we can say that the trial court’s findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake was made. We defer to the trial court in making credibility determinations. This court reviews the trial court’s conclusion of law de novo, This court has long held that an independent property-settlement agreement, if approved by the circuit court and incorporated into the decree, may nót be subsequently modified by the ■ court. When a contract is unambiguous, its construction is a question of law for the court and the intent of the parties is not relevant. The parties here were represented by able counsel and entered into the contract voluntarily, so' it must be enforced. hnII. Taxes Appellant’s first argument on appeal is that the circuit court erred in finding her responsible for the real estate taxes on the marital ■ home that appellee received in the property-settlement agreement. This court does not agree. The November 18, 2011 temporary order was expressly incorporated in the circuit court’s June 11, 2013 order on a motion for relief and contempt by appellant. The November 18, 2011 temporary order stated therein: Defendant shall pay to Plaintiff, on or before the first of each month beginning on October 1. 2012. the sum of TWENTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($27,500.00) via direct deposit into Plaintiffs Bank of the Ozarks account ending 518. That sum shall represent the child support obligation owed to Plaintiff and payment for all expenses Defendant was ordered to pay under this Court’s Temporary Order, including gas and electricity, fire insurance, home maintenance, real prop--erty taxes for the Little Rock residence (as specifically described herein below), pool services, trash services, pre-school tuition (beginning in school year 2013-2014 as specifically described below), and town maintenance.... Plaintiff shall be responsible for the 2012 Little Rock residence real property taxes for the months of !October-December 2012 ($3,321.96) to be paid directly to the Pulaski County Treasurer by the due date in October 2013. Plaintiff shall be responsible for all Little Rock residence real property taxes from January 2013 forward until further - order of this Court. The January 8, 2015 divorce decree states: The Plaintiff is given until February 1, 2015 to vacate the residence at 10 Thomas Circle, Little Rock, Arkansas. Plaintiff shall be solely responsible for. the utilities and other expenses associated with the marital residence as previously ordered by this Court until she vacates the marital home. Defendant shall not be responsible for any .charges or costs related to the marital home that. Plaintiff incurs during this time. I n.The decree also reduced appellee s child-support obligation to $12,000.00 per month beginning Februaiy 1, 2015, and awarded appellant an additional $8,000.00 in child support for the month of January 2015 only “based on [appellant’s] assumption of expenses related to the marital home, pursuant to the parties’ agreement.” Despite appellant’s argument that the circuit court erred in finding that the language in the agreement is ambiguous, it is clear that the circuit court did not make such a finding, stating in its February 25, 2016 order only that “[t]here appears to be a conflict within the Divorce Decree[.]” It stated that the parties “specifically referenced the earlier Orders whereby [appellant] was responsible for [real-]estate taxes as long as she received the $27,500.00 per month support” and found appellant responsible for the real-estate taxes on the home for the year of 2014 and the month of January 2015. Because it is clear from the plain language of the divorce decree that the parties agreed — as testified to by appellee — that appellant would receive an increased amount of support for the duration of her stay in the marital home for the express purpose of paying certain expenses, inclusive of the marital home’s real-estate taxes, in addition to child support, we find no error. III. Flatware Appellant’s second argument on appeal is that the circuit court’s silver flatware ruling was reversible error. Appellant’s arguments on this point are that the testimony was inconsistent, biased, implausible, and unsupported by credible evidence. Appellee, Griffis, and Hall testified that they saw the flatware in a closet in the marital home before appellant vacated the home, and that the flatware was not in the home thereafter. The circuit court expressly found Hall to be a credible witness with “no vested interest in [the] case.” Since | ^appellant testified that the silver flatware did not exist, she is asking this court to reweigh the evidence and the credibility given to it. Circuit courts are charged with making factual findings and assessing credibility. This court gives due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given to their testimony. This court has the authority to reverse those findings only when left with a firm conviction that the circuit court made a mistake. We do not have a firm conviction that a mistake has been made. Appellant also argues under this point that the circuit court erred in crediting appellee’s groundless and arbitrary valuation of the silver flatware. At no point during the hearing, or in any motion, did appellant raise this argument. Furthermore, appellant does not assert any legal authority to support this argument. This court may refuse to consider an argument where appellant fails to cite any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. | iJV. Lion Statues Appellant’s third argument on appeal is that the circuit court erred in splitting the lion statues. She asserts that the circuit court’s ruling was “contrary to the facts” and “inconsistent with [its] ruling concerning the Kubota Tractor”; however, she provides no legal authority to support either argument. The failure to cite authority is sufficient reason to affirm the circuit court’s ruling on this point. However, this court will note that Arkansas Code Annotated section 9-12-315(a) provides that “[a]ll marital property shall be distributed one-half to each party unless the court finds such a division to be inequi table.” By virtue of its ruling, the circuit court obviously found splitting the lion statues to be equitable. This court cannot find that it erred in doing so. V. Kubota Tractor Appellant’s fourth argument on appeal is that she is entitled to the full value of the Kubota tractor. Appellant argues that the rationale of the tractor being “purchased for the |14home is both inconsistent and improper”; and that she should have gotten the tractor because it was in her possession — not appellee’s — at the time of the decree. We review divorce cases de novo. With respect to the division of property in a divorce case, we review the court’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. We give due deference to the trial court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. In order to demonstrate that the circuit court’s ruling was erroneous, the appellant must show that the circuit court abused its discretion by making a decision that was arbitrary or groundless. Arkansas Code Annotated section 9-12-315(a) provides that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. The court may make some other division that it deems equitable; however, when it decides not to divide the property equally between the parties, it must recite its basis and reasons for the unequal division in its order. | t ¡Appellant testified that the tractor was purchased on April 21, 2011, during the marriage, with the parties’ American Express credit card at the Fiser Kubota Store, after the parties had hired a groundskeeper for the marital residence in March 2011. She submitted into evidence an American Express “2011 Year-End Summary” that showed a purchase was made from “FISER TRUCK AND TRA-CALEXANDER AR” on April 21, 2011, for $17,160.00; appellee did not object to admission of the summary. Appellee provided no testimony regarding the tractor; however, he argued in pleadings below that he “purchased the Kubota tractor in May 2011 with funds from [his] mother and [appellant] has no marital interest.” No evidence was submitted to support ap-pellee’s assertion. Regarding personal property, the divorce decree .stated that division should be made as follows: [T]he parties shall agree on a division of the marital property at the above-mentioned residences as follows. The parties shall divide the marital personal property by alternating picks from a master list until all personal property has been chosen. If the parties are unable to divide marital personal property, same should be sold at public sale on the petition for the same by either party, but in any event not later than March 15,2015. ■ The burden was on appellee to establish that the property was his separate non-marital property, and this court cannot hold that he met his burden; therefore, the tractor is marital property. The only evidence of the value of the tractor is appellant’s testimony and the American Express “2011 Year-End Summary.” Accordingly, we reverse on this point. hflVI. Ruling without Testimony Appellant’s fifth argument is that the circuit court erred in ruling on the appellant’s contempt motion relating to ap-pellee’s parental neglect without taking testimony, stating that: Due to the short nature of the hearing, and the trial court’s admonition that there would be no continuance or further hearing on the pending matters, the trial court was not provided any evidence or testimony on those pending contempt matters. The trial court acknowledged that testimony and evidence were not submitted on some issues due to the time constraints. Nevertheless, the trial court “dismissed” the contempt motion and cautioned both parties to make sure that the child is safe. She argues that that particular contempt motion was “most important because it concerned the care and wellbeing” of the parties’ child. However, she provided no testimony on the matter; neither did ap-pellee. This court notes that the circuit court did not deny appellant an opportunity to testify regarding the neglect allegations in her motion, but simply stated that the matter would “finish at 4:30” and that the court “[was not] going a minute longer and we’re not resetting[.]” Because appellant provided no testimony or evidence in support of her. contempt motion, this court cannot find that the circuit erred in dismissing the same. VII, Harassing and Annoying Filings Appellant’s final argument is that the circuit court erred by denying'her motion for contempt for appellee’s “harassing and annoying filings.” The substance of this argument is that appellee “filed multiple frivolous, petty, and harassing claims in his motions for contempt” that were “not worthy of the trial court’s time[.]” Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute | ^contempt, and punishment for such contempt is an inherent power of the court. Disobedience must be willful. Furthermore, her argument relies solely on her perception of appellee’s filings as harassing and annoy ing and her personal determination of what was worthy of the circuit court’s time. She provides no evidence that appel-lee’s filings were willfully disobedient of any court order. This court does not weigh or make credibility determinations. Furthermore, noting again that the circuit court did not limit what motions could be addressed — where appellant specifically listed this motion whén the circuit court asked what would be addressed at the hearing — and that appellant did not provide any testimony below with regard to this contempt motion, we again hold that there was no clear error. Affirmed in part; reversed in part. Virden and Klappenbach, JJ., agree. . Two other allegations were made that are not pertinent to this appeal. . This court notes that while there were many rugs listed in the property-settlement agreement, some of which were described, none were described as an "orientar’ rug; therefore, it is not clear which rug appellant is referencing, . Other allegations therein are not pertinent to this appeal. , Appellee's response also included another motion for contempt; however, those allegations are not pertinent to this appeal. Additional responses and contempt motions were filed by both parties after the contempt motion; however, none of the allegations'therein are pertinent to this appeal. . The lion statues were not on the list from which the property-settlement agreement was made. . The decree expressly states that it was approved as to form and content by both parties. . She referred to them as both chests and tables during her testimony. . Taylor v. Taylor, 2009 Ark. App. 605, at 6, 343 S.W.3d 335, 338 (citing Statler v. Painter, 84 Ark, App. 114, 133 S.W.3d 425 (2003)). . Id. (citing A.R. v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008)). . Id., at 6, 343 S.W.3d at 338-39. . Fischer v. Fischer, 2015 Ark. App. 116, at 3, 456 S.W.3d 779, 781 (citing Houston v. Houston, 67 Ark. App. 286, 999 S.W.2d 204 (1999)). . Id. (citing Jones v. Jones, 26 Ark. App. 1, 4, 759 S.W.2d 42, 44 (1988)). . Id. (citing Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996)). . (Emphasis added.) . (Emphasis added.) . Branch v. Branch, 2016 Ark. App. 613, at 6, 508 S.W.3d 911, 915. . Id. (citing Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001)). . Id. (citing Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000)). . Foster v. Foster, 2010 Ark. App. 594, at 11, 377 S.W.3d 497, 505 (citing Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007) (“[W]e will not entertain arguments on appeal that were not raised before the trial court.”)). . Jewell v. Fletcher, 2010 Ark. 195, at 24, 377 S.W.3d 176, 191 (citing Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001)). . Kelly v. Kelly, 2014 Ark. 543, at 12, 453 S.W.3d 655, 663 (citing Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002)). . Dew v. Dew, 2012 Ark. App. 122, at 7, 390 S.W.3d 764, 769 (citing Ark. Code Ann. § 9-12-315 (a) (Repl. 2009)). . Appellant argues first that the tractor was on the property-division list. We note that despite the circuit court’s assertion that the tractor was not on the property-division list, the tractor was on the list, being identified by appellee as nonmarital property and being chosen by appellant pursuant to the property division, while noting that appellee claimed the tractor was nonmarital. The assertion that the tractor was not on the property list was not clearly erroneous because the circuit court’s order does not appear to rely on the fact that the tractor was allegedly not on the list in making its decision. . Fields v. Fields, 2015 Ark. App. 143, at 2, 457 S.W.3d 301, 304 (citing Skokos v. Skokos, 344 Ark. 420, 425, 40 S.W.3d 768, 771 (2001)). . Id. at 2-3, 457 S.W.3d at 304 (citing Skokos, at 425, 40 S.W.3d at 772). . Id. at 3, 457 S.W.3d at 304. . Kelly, 2014 Ark. 543, at 5-6, 453 S.W.3d at 660 (citing Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007)). . Johnson v. Johnson, 2011 Ark. App. 276, at 8, 378 S.W.3d 889, 895 (2011). . Id. at 8-9, 378 S.W.3d at 895. . Johnson v. Johnson, 2011 Ark. App. 276, at 8, 378 S.W.3d 889, 895 (citing Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002)). . Balcom v. Crain, 2016 Ark. App. 313, at 3, 496 S.W.3d 405, 407 (citing Brock v. Eubanks, 102 Ark. App. 165, 288 S.W.3d 272 (2008)). . Erskin v. Stout, 2015 Ark. App. 533, at 10, 472 S.W.3d 159, 165 (citing Kilman v. Kennard, 2011 Ark. App. 454, at 7, 384 S.W.3d 647, 651). . Downum v. Downum, 101 Ark. App. 243, 257, 274 S.W.3d 349, 359 (2008) (citing Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004); Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001) ("our supreme court and this court have often declared that we accord deference to the superior position of trial judges in determining the credibility of witnesses and the weight to be given their testimony.”)).

Robert L. Brown, Justice. This appeal comes to us from a decree by the chancery judge voiding a Washington County quorum court ordinance to regulate solid waste disposal facilities (“landfills”) on constitutional grounds. The appellants are Washington County, members of the quorum court and other Washington County officials. The appellee is Sunray Services, Inc. (“Sunray”), a corporation that provides solid waste disposal services and that had applied to the quorum court for site approval to provide such landfill services at Durham in Washington County. The effect of voiding the quorum court ordinance was to allow Sunray to proceed with plans to construct the landfill. The appellants raise several issues on appeal, but we reverse on the issue of whether the ordinance was rationally related to a legitimate government purpose. We hold that it was. We further decline to affirm on the basis of the various issues raised by Sunray as additional arguments in support of the chancellor’s decree. The facts in this case are largely without dispute, although the findings and conclusions that can be gleaned from them are the subject of intense controversy. On June 30, 1989, Miller Matthews, chairman of the board and sole shareholder of Sunray, acquired 1,850 acres in the Durham area and immediately granted Sunray an option to purchase that land. On July 14, 1989, Sunray requested site approval for a landfill in a letter to the quorum court. The quorum court referred the request to its Environmental Affairs Committee (“EAC”). Under the rules of the Arkansas Department of Pollution Control and Ecology (“Pollution Control”) the request had to be acted on within sixty days, or the request would be deemed approved. Over the next sixty days the EAC had two meetings in which Sunray’s request was discussed — July 25,1989, and August 21, 1989. At the first meeting EAC heard comments from citizens opposed generally to landfills and from a geologist opposed to the specific site. Sunray consultants also discussed the proposed Durham site before the committee. At the close of the meeting, the committee recommended a moratorium on any new landfills in the county until a regional study could be completed. The quorum court considered landfill limits in general and the Durham site in particular at its August 10, 1989 meeting. Public comment was received regarding buffer zones from main water supplies and a landfill moratorium. Sunray’s counsel spoke in favor of the Durham proposal. The meeting ended with the quorum court’s sending the moratorium issue back to EAC for additional consideration. On August 21,1989, EAC considered and heard comments on the Durham proposal, Sunray’s past record, buffer zones for landfills in general, and pending Environmental Protection Agency regulations. Sunray’s attorney also answered questions about the project and spoke in favor of it. The committee concluded the meeting by recommending that the quorum court adopt more restrictive landfill standards than Pollution Control had done. The quorum court met again on September 14, 1989. At a prolonged meeting a general restriction ordinance was discussed as well as Sunray’s site proposal. Citizen comments were received both in favor of a restrictive ordinance and opposed. Richard Starr, the Beaver Water District director, and Dr. Richard Meyer, a limnologist, spoke in favor of some buffer zone between landfills and main water sources. Sunray’s counsel made a presentation in favor of the site proposal. By a vote of 11 to 2 the quorum court passed Ordinance No. 89-23, which established a two-mile buffer zone between landfills and main water sources. That ordinance reads in pertinent part: ARTICLE 1. No hazardous or other solid waste disposal facility as defined by Arkansas law shall be located within two (2) miles of the main water sources within Washington County, specifically Beaver Lake, Illinois River, Middle, Main and West Forks of the White River, Lee Creek, Prairie Grove Lake, Lincoln Lake, Clear Creek, Spring Creek, Fall Creek, Richland Creek, Barron Fork, Fly Creek, Wedington Creek, Cove Creek, Muddy Fork, Ballard Creek, Evansville Creek and Cincinnati Creek, and any other main water source so designated by the Quorum Court. The ordinance included civil remedies for violations and an emergency clause making it effective immediately. The quorum court then heard from two Sunray consultants on the issue of the landfill request at Durham. The Sunray consultants did not discuss the effectiveness of a buffer zone to protect main water sources. Armed with the ordinance, the quorum court promptly denied Sunray’s Durham site request on the basis that the site fell within two miles of the Middle Fork of the White River — a main water source listed in the ordinance and a Beaver Lake tributary. Sunray appealed the quorum court’s decision to Pollution Control on October 6, 1989, by filing a preapplication for a landfill with that department and requesting the Director of Pollution Control to review the quorum court’s actions. The director did conduct a review, and on December 27, 1989, he overruled the quorum court’s denial and authorized Sunray to continue with the preapplication process for site approval. Before Pollution Control could make its site evaluation, the state Attorney General issued an opinion on February 27, 1990, which caused the director of Pollution Control to halt all further activity relative to the Durham site until the issue of the ordinance’s validity and the denial of Sunray’s request by the quorum court could be finally decided. Sunray filed suit on March 2, 1990, to have the ordinance declared unconstitutional and invalid, and Washington County counterclaimed to enjoin Sunray from violating the ordinance. Trial was held before the chancellor on May 29-30, 1990. Sunray’s testimony consisted of evidentiary depositions of quorum court members and live testimony of a Pollution Control hydrogeologist (Mark Witherspoon), an engineer employed by SCS Engineers of Covington, Kentucky (Jim Walsh), a second hydrogeologist (Dr. William White, a professor at Pennsylvania State University), and its owner (Miller Matthews). Washington County offered the testimony of quorum court member and EAC Chair Lois Imhoff, and that of Beaver Water District director Richard Starr. The decree of the chancery judge was entered on August 3, 1990. It struck down the ordinance as unconstitutional on due process and equal protection grounds and it further dismissed Washington County’s counterclaim. In the decree the chancellor made findings of fact, including the following: (16) That the overwhelming testimony of the experts reflects that proximity to a water source is not a reliable basis for predicting whether a landfill may pollute nearby streams or rivers. (17) That the experts convincingly established that rational and objective factors to consider in siting a landfill include geology of the land, degree of slope, directional flow of ground water, and the texture of the soil. (18) That Washington County Ordinance No. 89-23 as adopted was not based upon rational and objective factors but rather upon negative attitudes and fears, community opposition and adverse public sentiment. (19) That while genuinely wanting to protect water sources in Washington County, members of the Quorum Court arbitrarily and irrationally adopted Ordinance No. 89-23 to deny Sunray’s request for specific geographic site approval and to halt its effort to site a landfill at the Durham Site. (20) That by enacting Ordinance No. 89-23 the Quorum Court has effectively blocked Sunray’s application process without specifically naming any factors which inherently threaten the public health, welfare, safety and environment regardless of proper design and operation of the landfill. (21) That by enacting Ordinance No. 89-23, the Quorum Court has effectively denied all potential landfill operators and potential users of land for landfill purposes the right to pursue an application process without naming factors which inherently threaten the public health, welfare, safety and environment regardless of proper siting, design and operation of the landfill. The decree also contained these conclusions of law: (4) That Washington County Ordinance No. 89-23 bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of due process of law. U.S. Const. Amend. XIV, Section 1; Ark. Const. Art. 2. (Citing case authority.) (5) That Washington County Ordinance No. 89-23 creates an unlawful classification against landfill operators and users of land for landfill purposes which bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of equal protection of law. U.S. Const. Amend. XIV, Section 1. (Citing case authority.) In deciding this case we first consider the pollution threat involved. With landfills the threat of pollution of water sources is directly related to underground water flow. This is so because the potential exists for landfill refuse to mix with rain, seep underground, travel along the underground water course for some distance, and eventually pollute surface water sources. There was considerable expert testimony offered by Sunray at trial that surface conditions and distance bear little or no relationship to the direction of underground water flow. Indeed, virtually all of the scientific testimony presented at trial supported Sunray’s contentions. Mr. Witherspoon of Pollution Control testified that distance is not a valid criterion for a landfill site’s suitability and that he could find no rational basis for imposing a two-mile buffer zone. Prohibiting landfills within two miles of surface water without proper study and adopted criteria and without empirical justification for doing so was arbitrary and irrational in his opinion. He admitted that distance might be a factor where geologic studies have been done and where “you have a good definition of the geologic structure.” Dr. White testified that a two-mile buffer zone provides no protection at all against landfill pollution of water sources. Underground geology controls, he testified; not distance from surface waters. He further stated that Northwest Arkansas does have a subsurface geology that could cause underground water to flow in any direction, including the opposite direction from where surface water is located. He knew of no rationale for requiring a minimum distance between landfills and surface water. Dr. White admitted that he had not done extensive field investigations in Northwest Arkansas. A third expert called by Sunray was Jim Walsh, an engineer retained to work on the landfill site. He also testified that there was no rational explanation for prohibiting a landfill as far away as two miles from surface water. Any monitoring or control of contamination from the landfill should occur within 300 feet of the site, he stated. Otherwise, the contamination plume spreads out as it covers a greater distance and is impossible to contain. Walsh stated that there was no justification for a setback requirement beyond 300 feet. He was, however, aware of three states that had distance requirements of up to 1,000 feet. The appellants countered this testimony with the live testimony of quorum court member and EAC chair, Lois Imhoff, and Beaver Water District engineer and director, Richard Starr. Lois Imhoff testified that two miles was a compromise and that some quorum court members had argued for five miles. She said that Richard Starr spoke in favor of the ordinance to protect the drinking water and recreation uses of Beaver Lake as did Dr. Richard Meyer, a University of Arkansas limnologist, who studies lake qualities. She admitted that no analysis had been done on the effect the rivers named in the ordinance had on drinking water or recreation. Her testimony was followed by that of Richard Starr, who stated that he opposed all landfill sitings within the Beaver Lake watershed because of the impact on water quality. He testified that the ordinance did have a rational basis since distance offers some protection against pollution and provides an area to work in in the event of a leaking problem. He disagreed with the conclusion that controlling contamination could only effectively occur within 300 feet of the landfill. In the evidentiary depositions of quorum court members and other appellants submitted by Sunray, some quorum court members alluded to public sentiment and common sense as justifications for the ordinance. Some members also admitted the direct correlation between adopting the ordinance and denying Sunray’s request for site approval. . I. ARBITRARINESS The first question confronting this court is whether the ordinance is so lacking in any rational relationship to a government purpose so as to be arbitrary and constitute a due process violation. We think not. We have long subscribed to a lenient rational basis test in Arkansas. This test is best set forth in a 1983 tax case. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). There, we noted that the legislature is better equipped than the courts to investigate the arbitrariness of a certain tax exemption aimed at out-of-state retirees. We then said: Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Since we can reasonably conceive of lawful purposes for the state’s classification scheme, it may not be held to have been arbitrarily enacted. 280 Ark. at 215, 655 S.W.2d at 464. Hence, any rationale that is a lawful purpose will void a constitutional challenge for arbitrariness. The Washington County quorum court was empowered to adopt landfill standards more restrictive than those of Pollution Control. See Ark. Code Ann. § 8-6-209 (Repl. 1991). By enacting a local zoning ordinance, the quorum court was exercising a legislative function, and the ordinance is subject to judicial scrutiny only to determine whether it is arbitrary, capricious, and unreasonable. See Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Absent arbitrariness or unreasonableness, the local ordinance should stand because the judiciary does not review the wisdom or rightness of legislation. Id.; see also West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). We believe a rational basis was embraced by the quorum court and supports this ordinance. Admittedly, no studies or analyses of the sub-surface geology had been made of the area in question by either party. And Sunray’s case was replete with testimony that a) underground waterways may well not correspond to surface waterways due to sub-surface geology, and b) distance could work to impede the control of pollution emanating from the landfill. On the other hand Lois Imhoff testified that Dr. Richard Meyer and Richard Starr had told the quorum court that a buffer zone could provide protection and a safety area to correct leaking problems. Richard Starr confirmed that point of view to the chancellor in live testimony. The goal of the quorum court was to protect water sources from landfill pollution — certainly a legitimate objective. It adopted an ordinance which endorsed a two-mile buffer zone as a means of doing this. We will not dismiss distance as a totally arbitrary reason for the ordinance when the record contains support for this position from the testimony of Richard Starr as well as other public comment, and when the quorum court members say they looked to common sense for additional support for their position. We are especially reluctant to give total credence to Sunray’s experts when their testimony was premised to some extent on sub-surface geology, and no tests or analyses have been performed to ascertain the geology between Durham and the Middle Fork of the White River. We also note that other jurisdictions have looked to distance as a meaningful criterion for limiting landfill sitings. See Fla. Stat. Ann. § 403.707(5) (West Supp. 1990) (3,000 feet as the limiting distance); R.I. Gen. Laws § 23-18.9-9.1() (Reen. 1989) (total prohibition in watersheds for drinking water); RSA 483:4 (XVIII) (Supp. 1990) (1,320 feet from normal high water mark of designated natural rivers). The chancery judge appears to some extent to have weighed the efficacy of competing methods for combating landfill pollution. In doing so, he looked to the fact that “overwhelming testimony” negated proximity to water as a reliable basis for predicting landfill pollution. The appropriate inquiry, however, was to ask whether a two-mile distance could have any bearing on landfill containment. For the ordinance to be arbitrary there must be a finding that it could have absolutely no bearing on the objective, and the testimony before the chancellor was conflicting on that point. We, therefore, hold that the findings of the chancery judge pertaining to the arbitrariness of the ordinance and the absence of a legitimate rationale to sustain it to be clearly erroneous. We further hold that the chancellor erred as a matter of law in concluding that there was no rational relationship between the ordinance and pollution containment, since the quorum court members could have determined from the information before them that distance was a legitimate rationale for the ordinance. II. EQUAL PROTECTION The chancery judge concludes in his Decree that the ordinance creates an unlawful classification against landfill owners and operators, but he does not define the favored class. Nor does Sunray in its complaint. The classification alleged could be between landfill owners within the buffer zone and other businesses in Washington County; or between landfill owners in the zone and landfill owners outside of the zone; or between landfill owners in the zone and other businesses in the zone. Our review is hampered by not knowing precisely what is the classification in question. Clearly, Sunray and other similarly situated landfill owners in the buffer zone are singled out. Nevertheless, though a classification may exist in state law, any rational basis which demonstrates the possibility of a deliberate nexus with legitimate state objectives will save the ordinance. Arkansas Hosp. Ass’n v. Arkansas State Board of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); see also Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).We have already held in this case that such a rational basis exists, and the U.S. Supreme Court has further held that the judiciary should not sit as a superlegislature to judge the wisdom or desirability of legislative policy in equal protection cases which do not affect fundamental rights and where regulation of local economic matters is involved. See City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam). We, accordingly, reverse the chancellor’s conclusion that the ordinance establishes an arbitrary classification and violates the Equal Protection Clause. III. PREEMPTION The chancellor acknowledged in his decree that the quorum court was authorized by state law to adopt more restrictive landfill standards than Pollution Control under Ark. Code Ann. § 8-6-209 (Repl. 1991). He went on to state that these standards must not conflict with any state law, but he did not find or conclude that such a conflict existed. In his memorandum opinion handed down the same date as his decree, he specifically says that if the ordinance had had a rational basis, it would not have been inconsistent with state or federal law. The Solid Waste Management Act was passed by the Arkansas General Assembly in 1971. See Ark. Code Ann. § 8-6-201, et seq. (1987). During its last two regular sessions the General Assembly passed two comprehensive amendments to the Act. Act 870 of 1989 and Act 752 of 1991, now codified at Ark. Code Ann. § 8-6-201, et seq. (Repl. 1991 and Supp. 1991). The stated purpose in both Acts was to remedy disparities among the counties in their capacity to dispose of solid waste and in their ability to implement environmentally responsible operations. Both acts establish regional districts and create regional boards to adopt solid waste plans and to issue landfill permits. Neither Act 870 nor Act 752 expressly repealed the counties’ authority to adopt more stringent landfill standards under Ark. Code Ann. § 8-6-209 (Repl. 1991). And like the chancellor we do not find a repeal of § 8-6-209 due to a direct conflict with inconsistent provisions in the two new acts. On this point we have been resolute in holding that repeals of statutes by implication are not favored. See City of Ft. Smith v. Driggers, 294 Ark. 311, 742 S.W.2d 921 (1988); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Moreover, § 8-6-209 can be harmonized with the existing Solid Waste Management Act in that while regional boards are authorized to issue landfill permits under the Act, this does not preclude local governments from adopting additional landfill standards. In this same vein our County Government Code provides generally that it is consistent for the counties to promulgate more exacting standards of conduct than the state has adopted. See Ark. Code Ann. § 14-14-809(c) (1987) . Sunray also advances the argument that the state and federal governments have preempted the area of solid waste management, including the issuance of permits, and further argues that when Pollution Control authorized Sunray to commence the preapplication process, the quorum court could not impede this action by passing an ordinance and refusing to approve the Durham site. Sunray adduces much case authority from other jurisdictions in support of its preemption argument. But the authority cited does not embrace a situation, such as we have here, where a state statute specifically authorizes the counties to adopt more stringent landfill standards than the state. In sum, the power of the quorum court to act as it did in this case in passing the ordinance is expressly recognized under state law in § 8-6-209, and that section has not been repealed. We hold that neither the Arkansas Solid Waste Management Act nor the Resource Conservation and Recovery Act have preempted the authority of local governments to adopt additional landfill standards as provided for in this statute. See 42 U.S.C. § 6901, et seq. (1988) ; Ark. Code Ann. § 8-6-201, et seq. (Repl. 1991 andSupp. 1991). IV. DE NOVO REVIEW We agree with Sunray that in an appeal from a chancery court decision all issues raised before the chancellor are before this court for review. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). However, we do not find merit in Sunray’s de novo arguments. a. Vagueness. Sunray contends that the ordinance is vague and overbroad in that it does not specify the factors that will determine “any other main water source,” it does not define “civil penalties,” and it does not state whether the two-mile buffer zone begins at the centerline of the river or the shoreline. The ordinance lists the primary water sources which vitiates this argument, while providing flexibility for the quorum court to expand on the list. There is also a legitimate flexibility in the civil penalties to be sought. Lastly, if it is the entire water source that is meant to be protected, common sense requires that the shoreline be the boundary of the buffer zone. Cf. Connally v. General Construction Co., 269 U.S. 385 (1926). b. Separation of powers. Sunray attacks the ordinance on grounds that the quorum court retains the power to approve civil litigation brought by the EAC officer, in conjunction with the county judge. This shared authority with the county executive does not constitute a usurpation of executive power such as occurred in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988). c. Retrospective application. The ordinance was not applied retrospectively, as Sunray argues, but used prospectively to deny the application. Undeniably, the ordinance’s adoption and denial of the landfill application were closely related in the minds of some, if not all, quorum court members. But the ordinance was passed first and subsequently used as a means for dismissing the application. d. Impairment of contract. No contract with Sunray was impaired by the adoption of the ordinance. The landfill site was purchased with full knowledge that it would not be operational without government approvals. Adoption of the ordinance was a facet of that approval process. e. Planning Board referral. The Planning Board does have authority to prepare a zoning ordinance for the county. See Ark. Code Ann. § 14-17-209(a) (1987). But that is not exclusive authority which divests the quorum court of its power to adopt standards for the location of landfill sites. See Ark. Code Ann. § 8-6-209 (Repl. 1991). f. Exclusionary zoning. Though Sunray contends that landfills, as a practical matter, are almost totally excluded throughout the county, this fact is disputed by the appellants. The chancellor made no finding on this point. Without a clear factual basis to sustain a holding of exclusionary zoning, we decline to so hold. g. Bill of attainder. Sunray finally argues that the ordinance was a punishment directed specifically at its business and its landfill application in violation of the federal constitution and state law. See Ark. Code Ann. § 14-14-805(8) (1987). We disagree. While the Sunray application may have been the immediate catalyst for quorum court action, landfill standards were a source of on-going debate before the quorum court. The ordinance does not provide a specific penalty for Sunray or landfill owners in general. Followed to its logical end, Sunray’s argument suggests that all regulations, zoning or otherwise, which affect landowners are acts of attainder. That is not the law. Reversed.

Robert L. Brown, Justice. On August 8, 1990, appellant Paul Cravey was found guilty of two counts of sexual intercourse or deviate sexual activity involving his niece, age 7, and his nephew, age 10, following waiver of a jury trial and trial before the court. He was sentenced to two terms of twenty years to run consecutively. Immediately following the sentencing, the trial court advised the appellant of his right to appeal on grounds of ineffectiveness of counsel under Ark. R. Crim. P. 36.4, as it was then in effect. On August 13,1990, the appellant’s counsel moved for leave to withdraw because the appellant had decided to seek post-conviction relief due to ineffective counsel at trial. On August 28, 1990, the appellant filed a pro se motion for a new trial under Rule 36.4, containing fourteen allegations of counsel ineffectiveness. The allegations included failure of defense counsel to bring out inconsistencies in the victims’ testimonies, failure to call certain witnesses like the victims’ parents and the social workers to testify, failure to produce photographs of the crime scene, and failure to highlight certain salient points. (Among such salient points was the testimony of the state’s medical witness concerning the healing of vaginal scars as applied to the facts of this case.) The prosecuting attorney responded to each allegation and argued that the appellant failed to add supporting facts to illustrate how these alleged failures prejudiced him at trial. On October 10,1990, the trial court signed an order granting the motion of appellant’s trial counsel to withdraw and stated that this was done “so that the [appellant] could file a motion for a new trial on the basis of ineffectiveness of counsel.” In another order the trial court appointed new counsel to represent the appellant. Also on October 10, 1990, the trial court denied the appellant’s motion for a new trial, finding “that the allegations in the motion are conclusory, that they fail to state the defendant was prejudiced, that the allegations are without factual support and clearly do not assert facts sufficient to raise an issue of ineffectiveness of counsel.” The trial court concluded that since the appellant’s motion “contains nothing but mere conclusions and unsubstantiated allegations,” it did not justify an evidentiary hearing. The appellant now appeals the denial of his motion on two grounds: a) the trial court failed to appoint counsel to represent him prior to dismissal of his petition for post-conviction relief, and b) he was entitled to a hearing on his motion. We affirm the trial court on both points. We begin by recognizing that our post-conviction procedures relating to ineffectiveness of counsel have been in flux over the past two years, and the appellant proceeded under a Rule 36.4 procedure which is no longer in effect. The operable part of Rule 36.4 establishing that former procedure read: The judge must further advise the defendant that, if a motion for a new trial is filed asserting facts sufficient to raise an issue whether his or her counsel was ineffective, a hearing will be held, and the time for filing a notice [of] appeal will not expire until thirty (30) days after the disposition of the motion, as provided in Rule 36.22. Under this procedure an appellant could pursue an ineffective-counsel motion before the trial court and would be entitled to a hearing if sufficient facts were raised. Otherwise, an appellant could appeal a denial of the motion to the appropriate appellate court within thirty days. We agree with the trial court that the appellant’s allegations were not buttressed by sufficient facts to raise an issue of ineffectiveness of counsel. To prevail on a claim of ineffective counsel a movant must show that the errors were so serious that the defendant was deprived of a fair trial and of Sixth Amendment guarantees. See Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) (per curiam); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988) (per curiam). Yet in each instance in the case before us the allegations made were either vague due to lack of factual underpinnings or else lacked the seriousness necessary to raise a viable issue of counsel ineffectiveness. The allegations simply did not rise to that level of gravity required to overcome the strong presumption that trial counsel did a competent job. See Mullins v. State. We next address the appellant’s assertion that he was entitled to the appointment of new counsel prior to the trial court’s dismissal of his motion. This equates to an argument that counsel was required to assist the appellant in perfecting his motion before the trial court under the Sixth Amendment. We have recognized repeatedly, however, that post-conviction proceedings under Rule 37 (the same rationale would apply to former Rule 36.4) are civil in nature and that there is no constitutional right to counsel to assist the defendant in preparing a motion for a new trial. See, e.g., Mullins v. State, supra; Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). We reaffirm those holdings today. But where a hearing is required due to a trial court’s finding of sufficient facts alleged, counsel is necessary, and we have so held. See Preston v. State, 303 Ark. 106, 792 S.W.2d 599 (1990). In Preston, the post-conviction motion for ineffectiveness of counsel was made under Rule 36.4 established by our 1989 per curiam. We held that the trial court had granted trial counsel’s motion to withdraw but had not clearly ruled on the appellant’s motion for a new trial on grounds of ineffective counsel. We remanded the case for a ruling on that issue and added, “Even if we should construe the order to be an order denying a motion for new trial, as the appellant argues, we would still remand for a full finding of fact and written ruling.” 303 Ark. at 108; 792 S.W.2d at 600. We then directed that upon remand, new counsel should be appointed to represent the appellant, and the trial court should either a) find that the petition and records do not raise sufficient facts to support an ineffectiveness issue, or b) assuming that sufficient facts were alleged, conduct a hearing to determine if the appellant is entitled to relief. In the case before us, the trial court has already found that the appellant’s motion is factually deficient and that a hearing is not justified. In Preston it had not done so. It would be futile, therefore, in light of what has already occurred for us to remand this case for further action before the trial court when that court has found that there is no basis for it. In 1990 we remanded two Rule 36.4 matters and directed that a new attorney be appointed forthwith to prosecute an ineffective-counsel motion in the trial court. See Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601, (1990); Cox v. State, 305 Ark. 488, 807 S.W.2d 665 (1991) (per curiam). Neither case guarantees the right to counsel to assist in preparing a post-conviction motion or the right to a formal hearing. Accordingly, they are not dispositive of the issues before us. In this case the trial court found that the appellant’s allegations were conclusory and that he had not raised sufficient facts to support an issue of ineffective counsel. We note that the trial court was intimately familiar with the facts of this case. The matter had been tried before the court without a jury, and thus the court had acted as the finder of fact. With this knowledge as background, the court reviewed the appellant’s motion and the prosecutor’s response and reached its decision. Under such circumstances and in light of the trial court’s findings, appointment of new counsel to prosecute the appellant’s motion further in that forum is not required. To hold otherwise would require new appointments and hearings in every post-conviction case, irrespective of a trial court’s previous findings. We decline to take such a dramatic step. Affirmed. Ark. R. Crim. P. 36.4 was amended by Per Curiam order, effective July 1,1989, to provide for a motion for a new trial due to counsel ineffectiveness. In re Abolishment of Ark. R. Crim. P. 37 and the Revision of Ark. R. Crim. P. 36, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam). That same date Ark. R. Crim. P. 37 was abolished. Id. By a second per curiam order effective January 1, 1991, Rule 36.4 was amended to delete the new trial procedure for ineffectiveness of counsel, and Rule 37 was reinstated. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, as Revised and the Amendment of Rule 26.1 and Rule 36.4 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990).

Donald L. Corbin, Justice. Appellee, Linda Payne, filed suit against appellant, Mapco, Inc., her former employer. Appellee alleged in her complaint that appellant violated the provisions of Ark. Code Ann. § 11 -9-107 (1987) by refusing to reemploy her when she completed her convalescence from knee surgery for a work-related injury. She alleged this was retaliatory conduct in violation of the public policy of the State of Arkansas. The jury awarded appellee a $15,000 verdict. Appellant challenges the verdict, claiming there was insufficient evidence for submission of the case to the jury and that unemployment benefits should have been deducted from the $15,000 award. We affirm. In 1983, appellant employed appellee as a clerk at a Mapco convenience store and gasoline station in Trumann, Arkansas. She received a job-related injury to her knee on August 25,1986. She did not work that week or a large part of the following week. She returned to work full-time on September 1, 1986. She testified that although her knee continued to bother her, she continued to work for eight or nine months. She testified that the company gave her permission to see Dr. Ball, who performed surgery on her knee on August 7, 1987. She filed workers’ compensation claims relating to this knee injury. Appellee testified about her attempts to return to work following her surgery. She said she went to the Mapco store on more than one occasion to talk to Brenda Davis and J.B. Broadway, her immediate supervisors, about returning to work. She said they ignored her. She also stated that in October 1987 when she went to the store, she received a note from Mr. Broadway telling her to turn in her uniforms. On December 26, 1987, she went back to the store to submit a doctor’s release, at which time Mr. Broadway gave it back to her, saying, “I don’t need this.” When she called back on December 28, 1987, to tell Mr. Broadway she would be available to work on January 4,1988, Ms. Davis told her, “We still don’t need you.” The evidence reveals that at least five other people were either hired or fired, or quit from December 1, 1987 to May 29, 1989. Cheryl Covey, a co-employee, testified that J.B. Broadway and Brenda Davis ignored appellee. She said they went into the office, shut the door, and told appellee they were too busy to talk to her. They also avoided appellee’s telephone calls. She overheard Mr. Broadway and Ms. Davis saying they were going to have to do something with appellee because “she was going to cause the company grief.” Mr. Broadway and Ms. Davis instructed Ms. Corey not to talk about appellee. In its brief, appellant states the first point of this appeal as follows: If this case is affirmed, the law of Arkansas will be that failure to reemploy a worker after an injury, for whatever reason, constitutes evidence of discrimination sufficient to sustain a jury verdict for damages. In support of this claim, appellant argues there was insufficient evidence of discrimination to submit the case to the jury. Appellant also argues that the public policy exception to our employment-at-will doctrine should not be extended to apply to this case. We disagree. Section 11-9-107 states: Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of his claiming benefits under this chapter or who in any manner obstructs or impedes the filing of claims for benefits under this chapter shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not to exceed one hundred ($100) dollars, or by imprisonment of or not to exceed six (6) months, or by both fine and imprisonment. True enough, this statute is basically penal in nature and the remedy it provides is pursuable through administrative action before the Workers’ Compensation Commission. However, we take the view that this remedy is not exclusive. This statutory provision is the clearest announcement by our legislature of a strong public policy that condemns retaliatory conduct by an employer who refuses to reemploy an employee for exercising a statutorily confirmed right to compensation for job-related injuries. Such conduct by an employer gives rise to an exception to our employment-at-will doctrine. See Sterling Drug, Inc v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Thus, appellant could properly bring this action for damages for the retaliation. See Wal-Mart Stores, Inc, v. Baysinger, 306 Ark. 239, 806 S.W.2d 385 (1991). Necessarily, the burden of proving a retaliatory discharge is properly placed upon the employee. See 2A A. Larson, The Law of Workmen’s Compensation, § 68.36(c) (1990). Here, appellee had the burden of proving that she was not rehired in violation of the public policy of this state, namely the policy stated in section 11-9-107. The prima facie case should be made by a showing that the workers’ compensation claim was a cause for the retaliation. This may be proved, as in most any other action, by circumstantial evidence. As Professor Larson points out in his treatise, ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Larson further elaborated that proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations. Id. Once the employee has made a prima facie case of retaliatory discharge, the burden shifts to the employer to raise a defense of non-retaliatory reasons for the discharge. See 2A A. Larson, The Law of Workmen’s Compensation, § 68.36(d) (1990). Clearly, appellee presented sufficient facts to justify the court in letting the case go to the jury. Appellee presented evidence of a job-related injury. She also presented evidence that, following the filing of her workers’ compensation claim and convalenscence from surgery to treat a job-related injury, her supervisors ignored her and avoided any attempt she made to communicate with them regarding her claim or reemployment. Mr. Broadway and Ms. Davis admitted they were mad at her for allowing the doctor to schedule surgery so as to interrupt Ms. Davis’ vacation plans. They also were overheard stating that appellee could cause the company grief. Finally, it was established that there were vacancies at appellee’s previous place of work. There were no averments that appellee had been anything but an exemplary employee since 1983. Following the presentation of the foregoing evidence, appellant offered very little evidence of non-retaliatory reasons for the refusal to re-hire appellee. The evidence that was offered was contradicted by appellee’s evidence. There was substantial evidence to support the jury verdict. As its second claim in this appeal, appellant argues that the $2,418.00 unemployment benefits paid by the State of Arkansas to appellee should not be classified as a collateral source and should be deducted from the judgment. In Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), a case of first impression in Arkansas, this court noted that the Federal District Court in Collins v. Robinson, 568 F. Supp. 1464 (E.D. Ark, 1983), aff'd per curiam, 734 F.2d 1321 (8th Cir. 1984), had adopted the proposition that unemployment compensation benefits are considered a collateral source in tort cases. The Green Forest court adopted the same rule in employment cases. We refuse to reverse ourselves in this regard and reaffirm our position thus announced in Green Forest, supra. Affirmed. Hays and Brown, JJ., dissent.

Jack Holt, Jr., Chief Justice. The appellant, John McGalliard, was convicted of sexual abuse in the first degree and sentenced to seven years imprisonment and a $2,000 fine. On appeal, he argues that the Arkansas Criminal Code’s definition of “sexual contact” is unconstitutionally vague and that there was insufficient evidence to support the verdict. We disagree with both arguments and affirm. The evidence of abuse in this case came primarily from the testimony of the victim, who stated that McGalliard touched her “between my legs . . . (indicating) right there in the middle. . . my private parts.” She stated that the touching occurred for “about an hour” and that “if I told, he would beat me black and blue.” Because the victim was a nine year old minor, McGalliard was charged with violation of Ark. Code Ann. § 5-14- 108(a) (3) (1987), which provides: (a) A person commits sexual abuse in the first degree if: * m * * (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old. “Sexual contact” is defined as “any act of «exual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(8) (1987). McGalliard contends that because “sexual gratification” is not defined, the statute does not give fair warning of what behavior is prohibited and, therefore, violates the due process clause of both the Arkansas and the United States Constitution. A law is void for vagueness if it lacks ascertainable standards of guilt such that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We fail to see how section 5-14-101(8) compels such persons to guess at its meaning and application. “Sexual” is defined in Webster’s Third International Dictionary, unabridged (1961), as “of or relating to the male or female sexes or their distinctive organs or functions” or “of or relating to the sphere of behavior associated with libidinal gratification.” “Gratification” is defined as “something that pleases.” Id. When construed in accordance with their reasonable and commonly accepted meaning, and in context with the specific acts described in section 5-14-101(8), the words leave no doubt as to what behavior is prohibited under the statute. Furthermore, we are guided by our rationale in Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). There, Williams was convicted of rape in that he engaged in deviate sexual activity with the victim. The code’s definition of “deviate sexual activity” also includes acts involving “sexual gratification”. Williams argued that although there was evidence he inserted his fingers into the victim’s vagina, there was no evidence he did so for “sexual gratification” as required by the statutory definition of “deviate sexual activity.” We reasoned thusly: Although there is no direct evidence that the petitioner put his fingers in the victim’s vagina for sexual gratification, it may be assumed that the desire for sexual gratification was the plausible reason rather than out of revenge or out of anger as the petitioner suggests. The plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification. 298 Ark. 320, 766 S.W.2d at 934. Likewise, we may assume that McGalliard touched the victim for sexual gratification and it is not necessary that the State prove that he was so motivated. McGalliard’s second contention, that the evidence was insufficient to support the verdict, is also without merit. The trial court noted that McGalliard raised this objection through timely motions for directed verdict. On appeal, we view the evidence in the light most favorable to the party against whom the motion is made and a directed verdict is only proper when there is no substantial evidence from which a jury could possibly find for the non-moving party. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); see also Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). The victim clearly described and indicated where she was touched. The victim’s testimony need not be corroborated to be sufficient. Jackson v. State, supra. Also, “even though the child may not use the correct terms for the body part but instead uses her own terms, or demonstrates a knowledge of what and where those body parts referred to are, that will be sufficient to allow the jury to believe that the act occurred.” 290 Ark. at 385, 720 S.W.2d at 287. We affirm the judgment of conviction.

Tom Glaze, Justice. Appellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of Cheryl Franklin. Dillard agreed to be a state’s witness, and appellant’s case was severed from his co-defendants’. Appellant was convicted of the lesser included offense of first degree murder and sentenced to life imprisonment without parole. On appeal, appellant argues that the trial court should have found Dillard an accomplice as a matter of law and erroneously failed to instruct the jury accordingly under AMCI 402. He also argued that the trial court erred in denying his objections to certain statements made by the prosecutor during closing argument. First, we agree with the trial court that Dillard was not an accomplice as a matter of law and that the court was correct in instructing the jury under AMCI 403 because Dillard’s accomplice status was disputed. A brief reference to the pertinent facts is necessary. The state’s proof showed that on the evening of January 20, 1990, the appellant, Colbert and Dillard were frequenting various drinking establishments. After a brief conversation in the parking lot of one of the clubs, Dillard gave Ms. Franklin some money in exchange for sex. Apparently, she wanted money so she could buy a “hit of crack.” When the men left the establishment, Franklin and another woman got in the car. They took the other woman home, and then picked up another individual named Rita Lane. Lane, however, was subsequently let out when appellant and Lane got into an argument. The men and Franklin then drove to a secluded area where they could smoke some crack. Dillard testified that he departed the car and laid upon its front hood. He said that appellant got in the back seat and had oral sex with Franklin. Dillard stated that, during this period when appellant was in the car’s back seat with Franklin, Dillard thought he heard appellant say that if Franklin would not have sex, they would leave her stranded. Dillard heard appellant and Franklin argue, and minutes later, Dillard heard three thumps on the back end of the car. Dillard looked through the back window of the car and saw Colbert with something in his hand making a wiping motion on the car’s trunk. When Dillard walked to the rear of the car, he viewed appellant standing over Franklin with a piece of concrete in his hand, coming down towards her head. Appellant and Colbert drug Franklin’s body into some bushes, and told Dillard if he said anything, the same thing would happen to him. Franklin’s body was found the next day and all three men were arrested. Under settled law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). An accomplice of another person in the commission of a crime is statutorily defined as a person, who with the purpose of promoting or facilitating the crime, solicits, advises, encourages, or coerces the other person to commit the crime or aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark. Code Ann. § 5-2-403 (1987). Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer, 294 Ark. 227, 742 S.W.2d 877. Appellant argues a number of factors he believes show Dillard was an accomplice as a matter of law. For example, he asserts the state originally had filed the same murder charge against Dillard as it did against appellant and Colbert, Dillard was at least guilty of the crime of hindering apprehension and the prosecutor had granted Dillard “extreme leniency.” Clearly, none of these facts in any way make Dillard an accomplice to Franklin’s murder. And while appellant argues the state obtained from Dillard’s wife a shirt, which may or may not have had blood on it, implicating Dillard in the crime, there was other testimony indicating the shirt was Colbert’s. Such evidence surely does not conclusively establish Dillard as an accomplice to murder. See also Pilcher, 303 Ark. 335, 796 S.W.2d 845 (where this court concluded that the fact the witness helped load a victim’s body into a truck did not establish the witness as an accomplice). Finally, appellant argues that Colbert’s confession, which apparently related Dillard’s involvement in the crime, clearly revealed appellant as an accomplice. The short answer to this claim is that Colbert’s confession was never introduced into evidence. Thus, the trial court or jury never had Colbert’s confession before it when confronted with the accomplice issue. In sum, contrary to appellant’s argument, the evidence is disputed as to Dillard’s accomplice status. Dillard’s presence at the crime scene and knowledge of the crime was shown, but, as stated above, such is insufficient to make him an accomplice. Thus, the trial court did not err in refusing appellant’s request for the AMCI 402 instruction. Before leaving the accomplice issue, we consider appellant’s suggestion that the trial court erred in denying his directed verdict motion that insufficient evidence was shown to corroborate Dillard’s testimony. The state presented evidence that a Henry Bennett, Thelma Williams (Canaday) and Rita Lane saw Franklin with appellant, Dillard and Colbert on the night of Franklin’s murder, and a Wardell Henderson, a bicycler, found Franklin’s body in the area where Dillard said the four of them had gone that night. An investigator found several items of evidence at that same location, which included Colbert’s black lighter and a concrete block with blood on it. The medical examiner testified that Franklin’s death was caused by a blunt object to her head, such as a concrete block. And finally, a state police officer located Colbert’s car, which had a dented trunk lid with what appeared to be blood on it. The foregoing evidence clearly sufficiently corroborates Dillard’s testimony and tends to connect appellant with Franklin’s murder. Appellant’s second point concerns the prosecutor’s closing argument. Basically, he says the prosecutor argued beyond the scope of the evidence and prejudiced the jury by doing so. During his closing, the prosecutor said the following: Even [defense counsel] challenged [Dillard] and said, “Why aren’t you telling us everything you told the police?” And you know what it had to be? It had to be more things that convicted [appellant]. We didn’t hear them, though. If they had been in favor of [appellant], we would have heard them. They would have had the policeman up here telling you all these things that. . . appellant didn’t do it, and someone else did. Or [defense counsel], as he insinuated, “Why don’t you tell them what you told me?” Well, if it had been good for the [appellant], don’t you know [defense counsel] would have been up there telling you about it? At this point, appellant’s counsel objected, saying the prosecutor knew defense counsel could not testify and still try a case. He called the prosecutor’s remarks improper and said such remarks were not evidence. In reviewing the record, particularly defense counsel’s cross-examination of Dillard, counsel attacked Dillard’s various statements as being inconsistent. In doing so, counsel elicited from Dillard that, in a prior statement, Dillard said that he, Colbert and Franklin did not discuss sex the night of the crime and then posed a question suggesting Dillard had told defense counsel and the authorities a different story later. While the prosecutor objected and defense counsel rephrased his question, counsel, continuing his impeachment of Dillard’s differing statements, asked later, “What I want to know now is (sic) what you told the authorities that they wrote down correct or is what you told me correct or what you are telling the jury correct?” In closing argument, defense counsel further alluded to the fact that the state failed to produce certain testimony or evidence at trial. In reviewing the above testimony and appellant’s closing argument, we conclude the appellant opened the door to a response by the state. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Accordingly, we hold the trial court did not abuse its discretion in overruling the appellant’s objection to the prosecutor’s remarks. We have examined the record pursuant to Ark. Sup. Ct. R. 11(f) and find no points preserved for appellate review which constitute prejudicial error. For the reasons stated above, we affirm.

Tom Glaze, Justice. Appellant appeals from his conviction for first degree murder and sentence of life imprisonment. His sole argument on appeal is that there is insufficient evidence to support the jury’s verdict. Appellant’s argument is without merit; therefore, we affirm. To meet its burden of proof for a conviction of murder in the first degree, the state must prove that a person with a purpose of causing the death of another person, causes the death of any person. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (1987). In criminal cases, this court affirms where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Circumstantial evidence may be sufficient to sustain a conviction, Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988), and where circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982). Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury. Id. On appeal, however, this court views the evidence only to determine whether there is substantial evidence to support the verdict. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988). Finally, in determining whether substantial evidence exists, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). On February 24,1989, Earl Markway was found murdered in a field off Highway 63 in Trumann, Arkansas. He had been stabbed twenty-three times, and no money was found in his wallet. In reviewing the state’s evidence introduced at trial, Markway, described as an older man dressed in western-style clothes, had been seen with the appellant at several bars on the night of the 23rd. Appellant, who is from Michigan, was in Trumann to marry his girlfriend, Missy Zech, and he had borrowed Missy’s car, which was used to transport him and Markway that night, Appellant and Markway were first at a bar in Our Place from approximately 6:30 to 8:00 p.m., in West Main Tavern from about 8:30 to 9:30 p.m., and in Jim’s Tavern between 9:00 and 10:00 p.m. Markway was buying beers for the appellant, and while at West Main Tavern, Markway complained because he was unable to obtain change for a $ 100.00 bill, so he paid with a $50.00 bill. After leaving Jim’s Tavern, appellant and Markway were seen together at an Exxon station by a former girlfriend, Vicki Finney, and by Missy, who was out looking for her car. Appellant had just purchased a six-pack of Budweiser. He told Missy that he had to take Markway home and that he would return to his sister’s (Anita Parker’s) house where he was staying. Missy told appellant that she would follow him and Markway, but appellant lost them after leaving Exxon’s premises. Later that night, appellant showed up alone at another former girlfriend’s (Carolyn Campbell’s) house. Tammy, Carolyn’s daughter, and two friends, Chris and Tony, were there and all agreed that appellant arrived at around 11:00 p.m. and went straight to the bathroom and ran water for a few minutes. Tammy and Chris both related they saw a knife in appellant’s possession, and Tammy also said that she saw blood on appellant’s hands when he came in. After a brief stay, appellant drove to his sister’s house, where he arrived at about 11:30 p.m. and was described as being in a bad mood. He had $180.00 in his pocket and also had a full bottle of crack. The amount of money was greater than what appellant told Missy he had when they left Michigan. After changing his jacket and T-shirt at his sister’s, he then got a ride to a bar named Rudy Kazoo. The State presented six witnesses who testified that the appellant told them that he had killed the old man. First, a bouncer at Rudy Kazoo’s bar stated that he broke up a fight involving the appellant and another, and appellant said, “You don’t want to f_ with me, I done killed one m_ f__” Vicki Finney stated that, on the night of the 23rd, she also saw appellant at Rudy Kazoo, and he told her that he had stabbed an old man. That same night, appellant asked Vicki for a ride to Michigan and gave her $100.00 for the trip. On the journey to Michigan, Vicki saw appellant take a knife wrapped in tissue out of the glove box and throw it in a ditch. She stated she saw something dark red on the knife and the blade was so bent, it would not fully close. In Michigan, Vicki said she overheard appellant tell his brother that he had stabbed the old man. Another ex-girlfriend, Samantha Hilderbran, who resided in Michigan, related that she knew nothing about the homicide in Arkansas until appellant told her that he had killed an old man. Appellant told Samantha that he just intended to rob the old man, but the man drew a knife, and appellant then stabbed him. Appellant told Samantha that after the stabbing, he went to a girl’s house, put his hands under his shirt and went to the bathroom to wash. After telling Samantha what happened, he threatened her against testifying against him by saying, “You think that man has been stabbed twenty-three times, yours would be uncountable.” Finally, appellant’s sister, Anita Parker, and brother, Mark, testified that appellant told them he had stabbed the old man. These declarations arose after appellant returned to Arkansas from Michigan, and he got into an argument with Mark in front of Anita and her boyfriend, Gene Dees. Appellant was concerned that Mark had told the police that appellant had stabbed Markway, and in a fight with Mark, appellant repeatedly asked Mark how it felt to be a walking dead man and also said, “I’m going to stab you long, deep and repeatedly like I did that old man.” He told Anita and Gene that they would be next. The testimony of the foregoing witnesses strongly supports appellant’s murder conviction. Appellant did little to discredit these witnesses’ accounts except to say that they lied because they were angry with him for beating them up. He also pointed out that the witnesses never gave a full account of what he purportedly said about the victim until they were asked on a second or later time. Such inconsistencies in testimony are matters for thejury. Ronning, 295 Ark. 228, 748 S.W.2d 633. On appeal, this court does not weigh evidence on one side against the other, we simply determine whether the evidence in support of the verdict is substantial. Id. Other evidence was also advanced by the state which either matched or was consistent with the testimony set out above. Without going into detail, the state showed traces of human blood were found on the jacket worn by appellánt on the night of February 23 and on the steering wheel cover of the car he drove that night. Also, the code number on a crushed Budweiser beer can found near the victim’s body matched the code numbers of four full beer cans found in the car driven by appellant. And finally, a partial footprint found in the area of the victim’s body was made by a tennis shoe like the ones worn by the appellant. Because the state’s evidence so clearly reflects that the appellant committed the first degree murder crime with which he was charged, we affirm. Further, under Sup. Ct. R. 11(f), an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error.

Per Curiam. The petitioner, State of Arkansas, requests a writ of certiorari on the basis that the trial court lacks the power to amend the charge of the Prosecuting Attorney of Faulkner County against the respondent, Jerry Hill, from theft of property (Ark. Code Ann. § 5-36-103 (1987) (a felony)) to theft of a trade secret (Ark. Code Ann. § 5-36-107 (1987) (a misdemeanor)). The writ of certiorari is not one of right, but is to be granted or denied within the discretion of the court from which it is sought; certiorari may be granted where the court lacks the power to act as it has purported to do. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988). In State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990), this court noted that the duty of charging an accused with a felony is reserved either to the grand jury or the prosecutor, Ark. Const, amend. 21, § 1; by amending the charge from a felony to a misdemeanor, in that case, over the State’s objection, the trial court encroached upon the prosecutor’s constitutional duties and breached the separation of powers doctrine. See also United States v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987); State v. Laury, 397 So.2d 960 (Fla. App. 1981); Petition of United States, 306 F.2d 737 (9th Cir. 1962). Consequently, the trial court’s amendment, in this case, of a felony charge to that of a misdemeanor impermissibly usurped the prosecutor’s constitutional duties. The petition for writ of certiorari is granted.

Jack Holt, Jr., Chief Justice. The appellants, Charles Tackett and Alberta Tackett, appeal from the chancellor’s grant of foreclosure, filed by the appellee, First Savings of Arkansas, F.A. (First Savings). The Tacketts assert three arguments for reversal: 1) First Savings is not the record, legal owner of the indebtedness sued upon; 2) the contract sued upon by First Savings is usurious; and 3) the trial court had no authority to reopen the record to allow the admission of the certificate of First Federal Savings of Arkansas as to corporate existence. The final argument has merit but does not affect our decision to affirm the chancellor’s grant of foreclosure. On November 30,1979, Ms. A. Tawanna Minix executed a promissory note, payable to the the order of First Federal Savings and Loan Association of Little Rock (First Federal S&L). The note was to be paid in monthly installments and was secured by a mortgage on certain property located in Pulaski County. The mortgage was executed contemporaneously with the note. Later, Ms. Minix married Larry D. Tackett and on April 27, 1987, they executed a second mortgage on the property to the appellants, Mr. and Mrs. Charles Tackett. By December, 1987, Mrs. Minix Tackett was in default on her note to First Federal S&L and a foreclosure suit was filed in Pulaski County Chancery Court. The action was brought under the name of First Federal Savings of Arkansas (First Federal Savings) as First Federal S&L changed its name in 1983 when it became a public corporation and issued stock to the public. The Charles Tacketts were also served as parties to the foreclosure action and subsequently filed a cross-complaint against Larry Tackett and A. Tawanna Minix Tackett to foreclosure their second mortgage lien. In April, 1988, First Federal Savings filed an amended complaint stating that Mrs. Minix Tackett had brought her loan current since the filing of its action for foreclosure but was again in default, and praying that its mortgage lien be foreclosed. The Charles Tacketts responded to the amended complaint, claiming the note sued upon was usurious. During the pendency of this action, First Federal Savings became insolvent and was placed under conservatorship by virtue of federal law—the Financial Institutions Reform Recovery and Enforcement Act of 1989 (FIRREA). The Resolution Trust Corporation (RTC) was appointed receiver, and sold substan tially all of the assets of First Federal Savings to First Savings of Arkansas (First Savings), a federal mutual savings and loan association created by the Act. The chancellor granted First Savings’ motion that it be submitted as the plaintiff and real party in interest, despite the Tacketts’ objection that there was no evidence of a proper assignment or endorsement of the note and mortgage from First Federal Savings to First Savings. The case proceeded to trial, and the chancellor held in favor of First Savings and granted the foreclosure. The Charles Tacketts, as the second mortgage lienholders, now appeal. We review the findings of the chancellor de novo on appeal, and do not reverse unless such findings are clearly erroneous. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). I. RECORD, LEGAL OWNER OF THE NOTE The Tacketts first argue that there was no endorsement on the promissory note, as required by Ark. Code Ann. § 4-3-202 (1987), nor any evidence of an assignment or written transfer of title, either when the note was transferred from First Federal S&L to First Federal Savings, or upon transfer from First Federal Savings to First Savings; therefore, they contend, title of the note and mortgage remains in the hands of First Federal S&L. In disagreeing that such assignment or written transfer was necessary, the chancellor found that the change from First Federal S&L to First Federal Savings was one of corporate name change only and that the entities were one and the same. As to the change from First Federal Savings to First Savings, the chancellor further found that the FIRREA effected a valid transfer of the note and mortgage by operation of law. Our de novo examination of the record reveals that the chancellor reached the right results, but for the wrong reasons. We are not convinced that the chancellor’s findings as to the chain of succession of the successor corporations, such as the finding that First Federal S&L and First Federal Savings were the same entity, but for name change, are correct. However, these findings are of no moment as the evidence before us clearly establishes that valid transfers of the note and mortgage in question occurred between all three institutions under Ark. Code Ann. § 4-3-201 (1987). Ignoring section 4-3-201, the Tacketts rely on section 4-3-202, which defines negotiation of written instruments, and provides in pertinent part: (1) Negotiation is the transfer of an instrument in such form, that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery. (2) An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof. The Tacketts’ assertion that endorsement was required before the document could be transferred is erroneous since negotiation of an instrument cannot be equated with mere transfer, as defined in section 4-3-201. This section states: (1) Transfer of an instrument vests in the transferee such rights as the transferor has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course. (2) A transfer of a security interest in an instrument • vests the foregoing rights in the transferee to the extent of the interest transferred. (3) Unless otherwise agreed any transfer for value of an instrument not then payable to bearer gives the transferee the specifically enforceable right to have the unqualified indorsement of the transferor. Negotiation takes effect only when the indorsement is made and until that time there is no presumption that the transferee is the owner. Note 1, from the Official Comment to U.C.C. § 3-202, explains that: “Negotiation is merely a special form of transfer, the importance of which lies entirely in the fact that it makes the transferee a holder as defined in Section 1-201. . . .” See also Brown v. Bell, 291 Ark. 116, 722 S.W.2d 592 (1987) (endorsement unnecessary to transfer an instrument by gift). Our case law is clear that one can become a transferee, with all the rights of the transferor, without negotiation or endorsement. For example, in Griffith v. Griffith, 250 Ark. 845, 467 S.W.2d 737 (1971), we held that where a mother paid off the balance due on her son’s note, which was secured by a mortgage, and the wife of the note holder marked the note paid in full, signed her husband’s name, and surrendered the note to the mother, the transaction was, in effect, an assignment of the debt, carrying with it the lien of the mortgage. We explained that the mother “had accounted for her possession of the unendorsed note by proving the transaction through which she acquired it.” Id., 250 Ark. at 848, 467 S.W.2d at 739. See also Brown v. Bell, supra; Williams v. Harrell, 226 Ark. 115, 288 S.W.2d 321 (1956). Here, the chain of possession was likewise established. Evidence of First Savings’ acquisition of the note was presented primarily through the testimony of its Vice President, Glen Williams. Mr. Williams testified that First Federal S&L was in possession of the promissory note and mortgage when it made the decision to sell private stock. He stated that this decision simply effected a change of corporate title—from First Federal Savings and Loan Association of Little Rock to First Federal Savings of Arkansas-—and that “all the assets and all the liabilities accrue to the new corporation and they’re just transferred on to the public record.” Mr. Williams remarked that “all those documents are filed in the county records.” Whether there was an actual change of entities or whether the change was one of corporate title only is irrelevant since our concern is whether or not there were valid transfers. Here, First Federal Savings clearly acquired the note from First Federal S&L and continued to collect payments from Mrs. Minix Tackett. Later, the transfer of assets from First Federal Savings to First Savings occurred by operation of law under the FIRREA, Pub. L. No. 101-73,103 Stat. 183 (1989). The FIRREA created the Resolution Trust Corporation (RTC), which was then appointed receiver for the insolvent First Federal Savings, and the institution was renamed First Savings of Arkansas. See 12 U.S.C § 1441a(a) and (b) (Supp. 1991). In addition, Mr. Williams testified that the RTC executed a general assignment to First Savings assigning “all the Assignor’s right, title and interest in and to any and all mortgages and other security interests filed for record in the county of Pulaski and State of Arkansas.” The Tacketts argue that this assignment was effective only as to the mortgage and not the note. Even assuming this point to be correct, Mr. Williams’ testimony established that transfers, were nonetheless made between all three entities involved. II. USURY For their second point of error, the Tacketts argue that the late charge contained in the terms of the promissory note rendered the contract usurious. We disagree. The terms of the note provided for monthly payments of $260.70, which were based on an annual interest rate of 9.875 % for a $30,000 loan. In addition, the borrower was to pay “a late charge of 4 percent of any monthly installment not received by the holder within fifteen days after the installment is due.” The record indicates that Mrs. Minix Tackett had been late with payments since January, 1988, and ceased paying altogether in August, 1988. At the time the note was executed, Ark. Const, art. 19, § 13 provided that all contracts exceeding an interest rate of 10% per annum would be void. The Tacketts maintain that the 4% charge, when added to the monthly payments and amortized over the 30 year life of the loan, results in a usurious contract. This reasoning is wrong since the charges were to be assessed only for those months in which payment was overdue. If an instrument is not usurious on its face, the borrower (or the one challenging it) has the burden of proving it is usurious. See Bunn v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980). A charge which is labeled a penalty, but which is really a subterfuge for interest, may render a transaction usurious; however, a late charge that is in the nature of a penalty will not. See Smith v. Figure World Plus, Inc., 288 Ark. 355, 705 S.W.2d 432 (1986). Although we examine each cause of this type on all of its own particular facts, two of the principal factors in determining if the charge is truly a penalty are whether the charge is fixed in artiount and whether it is assessed as a onetime charge. Id. The late charge here was fixed at $10.43 per month, which is 4% of the monthly installment of $260.70. Also, the terms indicated, and Mr. Williams testified, that the charge was assessed only for the months in which the payments were late. Mrs. Minix Tackett owed a total late fee of $135.46, which is the charge for 13 months in delinquent payments at $10.43 a month. The situation here parallels that in Smith supra. There, the appellant agreed to pay $10 per month for her health club membership. The contract further provided for a $10 late charge for each month in which the payment was overdue. The appellee health club filed suit for overdue membership fees and for $90, for nine months of late charges. We held the charges were nonusurious since they were fixed in amount; were charged only one time, and were not compounded. Likewise, in Hayes v. First Nat’l Bank of Memphis, TN, 256 Ark. 328, 507 S.W.2d 701 (1974), we upheld, as nonusurious, an agreement charging 5% or $5, whichever was less, for each month the installment of $83.16 was late. We noted that “agreements for penalties to induce prompt payments are free from usury- because the buyer has it in his power to avoid the penalty by discharging the debt when it is due.” Id. at 331, S.W.2d at 703. The late charge here was a onetime penalty, of a fixed amount, which could have been entirely avoided by prompt payment. We affirm the chancellor’s finding that the contract was nonusurious. III. SUBMISSION OF CERTIFICATE Lastly, the Tacketts argue that the trial court had no authority to reopen the record and allow First Savings to include a document not introduced at trial. At issue, is a certified copy of the document concerning the corporate change of title from First Federal S&L to First Federal Savings. Mr. Williams testified as to the corporate name change, noting that documents supporting this change were filed in the county records, although he did not have them in court. There were no objections to his remarks in this regard. Following trial, the parties submitted post-trial briefs. First Savings attached to its brief, a certified copy of a recorded document noting Mr. Williams’ testimony concerning the corporate name change. In her opinion letter of March 16, 1990, the chancellor referred to the document and to Mr. Williams’ testimony as the bases for her finding that there was no substantial change in entities. The court noted the document was a public record and stated that the trial record would be reopened to allow First Savings to insert a certified copy. The Tacketts later filed a written request for findings of fact and conclusions of law, which included a request for the court to cite its authority for reopening the record; the court answered the request, in her own handwriting opposite each request, but did not do so until after the entry of the decree of record and after the notice of appeal and designation of record was perfected by the Tacketts. When filing their record on appeal with the Court of Appeals (the case was later transferred to this court), the Tacketts filed a motion to strike, having discovered that the certified copy had been inserted into the transcript and noting further that the document was never filed marked, was never included as a pleading by any party, and was not proper evidence. As a result, the court of appeals remanded the matter to the chancellor to settle the record. Although not abstracted by either party, an examination of the record reveals the chancellor, upon remand, conducted a hearing at which the parties were represented by counsel. Following oral arguments, the chancellor formally introduced the certificate into the record and concluded that such introduction, and the hearing, properly settled the record. We disagree. The purpose in settling the record, under Ark. R. App. P. 6(e) is to ensure that the record “truly discloses what occurred in the trial court." (emphasis added). It is undisputed that the certificate was not introduced at trial, nor does there appear to have been any discussion concerning its introduction. Furthermore, the procedure by which the certificate was introduced after trial was improper. Granted, a trial court has discretion to reopen the record before entry of a final decree. See Kennedy v. Kennedy, 243 Ark. 773, 421 S.W.2d 611 (1967). Before doing so, however, the trial must afford both parties the opportunity to be heard on the matter. This was not done. Without entertaining motions or conducting a hearing on the issue, the chancellor merely announced in her opinion letter, that the record is to be opened to allow the insertion of this new evidence. The chancellor entered her final decree on April 3, 1990, without mention of the certificate, yet it appears in the original record as plaintiffs Exhibit 1. In sum, we cannot approve the procedures utilized by the chancellor in receiving Exhibit 1 as evidence and causing it to be placed into the record, nor can we agree with the chancellor’s apparent assumption that by “settling the record” the improper introduction of a certified copy into evidence was cured. Although considering this certificate as evidence and placing it in the record was error, we do not see that the Tacketts have been prejudiced. Evidence of the corporate name change, and its relation as to the transference of the note between corporations, was sufficiently introduced through the testimony of Mr. Williams. The certificate has no bearing on our decision on the merits. Based on the foregoing reasons, we affirm.

Per Curiam. Appellant, who was already on probation, was charged with the murder of Mr. Stephens. Appellant’s probation was revoked, and appellant appealed. The parties have submitted their briefs, and the case awaits submission. After appellant’s probation was revoked, he was tried on the murder charge, and at the close of the state’s case, the state moved for dismissal, which was granted. The state’s request for dismissal was prompted by its witness’s (Dr. Fahmy Malak’s) testimony that Stephens had died from a gun shot close to the head. Other state witnesses presented conflicting testimony to the effect that Stephens had been shot from a distance. After dismissal of the murder charges, appellant seeks to supplement the record in his revocation appeal with Dr. Fahmy Malak’s trial testimony even though such testimony was given nearly six months after the revocation hearing. The state objects to such supplementation, but alternatively requests that it, too, should be allowed to supplement the record with pathology expert reports that conflict with Malak’s testimony. Because this court’s role is not one of factfinding, we are in no position to determine what effect any of the proffered testimony might have had on the trial court when it revoked appellant’s probation. The trial court did not have benefit of what has transpired since its revocation decision and because we have not, as yet, decided this matter on the original record, we remand this cause to the trial court for a rehearing or reexamination and reevaluation of all relevant evidence. See Johnson v. State, 248 Ark. 184, 450 S.W.2d 564 (1970); Mitchell v. Bishop, 245 Ark. 899, 435 S.W.2d 91 (1968); see also, 24B C.J.S. Criminal Law § 1943 (1962).

Per Curiam. The appellant, Zealous Allen Jones, was found guilty of murder in the second degree on October 12,1990, during that window of time when Rule 37 of the Arkansas Rules of Criminal Procedure was not in effect. Appellant was represented at trial by John Kearney who filed a timely notice of appeal on November 9, 1990. On November 12, 1990, after the notice of appeal had been filed but within the time for filing a timely petition under Rule 36.4, a new attorney, Tim Womack, filed a motion under Ark. R. Crim. P. 36.4, claiming ineffective assistance of counsel. Rule 36.4 provided that claims of ineffective assistance of counsel could be raised in a motion for new trial filed within thirty days of the date the judgment was entered. After a hearing on the motion for new trial, the trial court denied relief. A second notice of appeal, this one filed by Mr. Womack, was filed, expressing the intention to appeal from both the judgment of conviction and the order denying the motion for new trial. When the appellant’s brief was filed in this court, Mr. Womack argued only that the trial court erred in denying the motion for a new trial. He did not abstract the trial record; instead, he simply stated that there was no reversible error in the trial proper. Assuming that Mr. Womack can be considered attorney-of-record, he was obligated under Sup. Ct. R. 11(h), and in accordance with Anders v. California, 386 U.S. 738 (1967), to ask to be relieved with respect to that portion of the appeal which he contends is meritless and to support the motion with “a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court and of all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers the points thus raised would not arguably support an appeal.” In an analogous situation, where an attorney contended there was merit to the appeal of the judgment but not of an order denying post-conviction relief, we required the attorney-of-record to file a motion to be relieved as counsel with respect to that part of the case in which he contended there was no merit. A copy of the motion and counsel’s brief, which complied with Rule 11(h) and Anders, were mailed to the appellant so that he could respond, if he desired to do so, within thirty days. There has been no compliance with Rule 11 (h) in this case, nor any listing of objections made by the appellant and overruled by the court, nor of the motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points would not arguably support an appeal. Thus, to comply with Rule 11 (h), appellant’s counsel is required to rebrief the case. Once a motion to be relieved and brief have been filed in conformance with the rule, the motion and brief will be mailed to the appellant with a letter advising him of his right to respond to the “no merit” portion of the case. This case is removed from the list of cases under active submission, awaiting further briefing in accordance with this per curiam. November II, 1990, was the thirtieth day, but as it fell on a Sunday, the motion filed Monday, November 12, 1990, was timely. The record does not reflect that John Kearney ever asked to be relieved as counsel by this court which he was obligated to do under Sup. Ct. R. 11 (h), once the notice of appeal had been filed or that Womack ever asked this court to be declared attorney-of- record. This court has never had occasion to decide whether an attorney under these circumstances must ask this court to declare him attorney-of-record.

Robert H. Dudley, Justice. The appellant was charged with, and convicted of, aggravated robbery and possession of drug paraphernalia. We affirm the conviction for aggravated robbery, but reverse and dismiss the conviction for possession of drug paraphernalia. 1. Aggravated robbery At about 2:30 a.m. on the night of May 26, 1990, Steven Barnes’ car ran out of gas near the intersection of 23rd and Izard Streets in Little Rock. He knew there was a gas station at a nearby intersection, so he walked there, only to discover that it was closed. Outside the station he saw some men standing beside a blue sports car. He walked over to them and asked if they would take him to get some gas. One of the men was the appellant. As Barnes was talking to the appellant, another of the men, known as Bullwinkle, slipped up behind Barnes and began beating him on the head with a large pistol. Barnes tried to run away, but appellant and Bullwinkle chased him about half a block and caught him. Bullwinkle again started pistolwhipping him and ordered the appellant to grab his wallet. The appellant grabbed Barnes’ wallet, and he and Bullwinkle ran to the corner of 26th and Arch where the blue sports car was waiting. They got in the car and drove away. Appellant was convicted of a violation of Ark. Code Ann. §5-12-103(a)(l) (1987), which provides: A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; .... Ark. Code Ann. § 5-12-102 (1987) provides, in part: A person commits robbery if, with the purpose of committing . . . a theft. . ., he employs or threatens to immediately employ physical force upon another. (Emphasis added.) Appellant first argues that the proof was not sufficient to show his intent to commit a theft because he only acted on Bullwinkle’s command. The argument is without merit. The evidence does not show that appellant protested when Bullwinkle began to beat Barnes, instead he joined in the affray by chasing Barnes when he tried to run away. He took Barnes’ wallet and fled the scene of his own volition. Taking the wallet and running away with it are strong evidence that he intended to deprive Barnes of his property. Depriving another of his property is the essence of theft. See Ark. Code Ann. § 5-36-103 (1987). Appellant next contends that there was no evidence that he used physical force on another person. Barnes testified that “they caught me. They kept beating me in the head with a pistol.” Appellant argues that “they” is not substantial evidence that he was involved in the beating because there were at least three people present when the victim first approached the group of men to ask for a ride. We reject the argument because Barnes testified that “the both of them started chasing me,” and that after they caught him, “the other guy with the pistol ordered that guy right there [appellant] to take my wallet out of my pocket.” It is clear that “both” referred to appellant and Bullwinkle. The jury did not have to resort to conjecture to establish that appellant participated in using physical force against the victim, Barnes. Appellant also contends that there was no evidence introduced to show that he was armed with a weapon. We reject this contention since the evidence established that appellant’s companion was armed with a pistol and beat Barnes in the head with it. Although appellant never actually possessed the gun, he was liable as an accomplice because he assisted and actively participated in the crime. Ark. Code Ann. § 5-2-403(a)(2) (1987) provides: A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he: (2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it. When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Parker v. State, 265 Ark. 315, 325, 578 S.W.2d 206, 212 (1979). Here, appellant and Bullwinkle chased and caught Barnes. Bullwinkle was beating Barnes when the appellant took Barnes’ wallet, and then appellant fled with Bullwinkle. The jury could reasonably infer that appellant and Bullwinkle were acting together. Further, fleeing from the scene of the crime is relevant to the issue of guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Therefore, there is substantial evidence to support appellant’s conviction for aggravated robbery, and that conviction is affirmed. 2. Possession of drug paraphernalia At the time of appellant’s arrest, the officer performed a pat-down search and, in appellant’s right front trouser pocket, found a small piece of chrome plated metal tubing that appeared to be a three or four inch piece of automobile radio antenna. Inside the tube was a “piece of screen or mesh, wire-type mesh, or metal material of some kind.” The outside appeared to have been burned or heated. Immediately before trial, appellant’s attorney made a motion asking that the State’s witnesses not be allowed to refer to the piece of antenna as a “crack pipe.” The trial judge granted the motion. In addition, the appellant moved that the State be precluded from showing that pieces of antenna are commonly used as drug paraphernalia. The trial court also granted that motion. Immediately afterward, the following colloquy occurred: MS. BALL: [Deputy Prosecutor] Okay, I’ll just tell you what I was planning on asking. If you don’t want me to, I won’t ask it. He is a patrolman. He knows about what devices are used, just through his everyday work, to smoke for ingesting cocaine. I was going to ask him if he had an opinion as to what this was used for and what was the basis for his opinion, and then he would talk about-all the arrests he has made with devices such as this and what it is used for and if he has gone to seminars, etcetera. THE COURT: I don’t think we need that for this case. Appellant argues that the evidence is insufficient to support a conviction for possession of drug paraphernalia. The argument is well taken. Appellant was charged with violating Ark. Code Ann. § 5-64-403(c)(l) (1987) which provides: It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of subchapters 1-6 of this chapter. Any person who violates this section is guilty of a Class C felony. (Emphasis added.) In short, the statute provides that it is a crime to use, or to possess with intent to use, drug paraphernalia to inhale or ingest drugs. The State argues that the chrome tube is drug paraphernalia by statutory definition. Ark. Code Ann. § 5-64-101 (v) (Supp. 1989) defines drug paraphernalia and contains a partial list of included items, as well as fourteen (14) factors to be considered in determining whether an object is drug paraphernalia. Subsection 12(A) provides: Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: (A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; . . . Ark. Code Ann. § 5-64-101 (v)(12)(A) (Supp. 1989). It would amount to sheer speculation to hold that this piece of antenna was possessed for drug use without some testimony that such a tube is often used for inhaling drugs. However, we need not dwell on the issue because, even if it fits the statutory description of drug paraphernalia, the State must prove that appellant used or possessed it with intent to introduce a controlled substance into the human body. The State’s proof falls short on that element. No proof was offered to show that there was a residue of a controlled substance inside or outside the tube; in fact, the tube was not tested for drug residue. No drugs were found on appellant or in his residence, and he was not linked in any way to drug use. Without something more to connect the piece of car antenna to controlled substances, the jury had to speculate to conclude that the appellant intended to use it for the prohibited purpose. In determining whether there is sufficient evidence to support a jury verdict, this court views the evidence in the light most favorable to the appellee and affirms the verdict if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force to compel a conclusion one way or another. It must be more than mere speculation or conjecture. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Because the jury had to speculate that appellant possessed the piece of chrome tube with an intent to use it to inhale controlled substances, the evidence is not sufficient to support the conviction for possession of drug paraphernalia and that conviction must be reversed. The State asks that we not consider the appellant’s insufficiency argument because, it contends, the appellant did not specifically argue, in his motion for a directed verdict, that the tube was not covered under the statute. We reject the contention because (1) the appellant’s attorney referred by number to the specific statute involved and (2) discussed at length the intent issue. Next, the State tacitly admits that it did not prove that the tube was used or intended to be used as drug paraphernalia, but argues that the trial court’s erroneous ruling caused the failure of proof and that “the sufficiency of the State’s proof of appellant’s guilt should be evaluated on the basis of the evidence the State proffered to the trial court, not on the basis of the evidence the trial court actually admitted” and that “the State should not be denied a conviction because admissible evidence was excluded.” Initially, we note the trial court did err in its ruling against the State. Ark. Code Ann. § 5-64-101 (Supp. 1989) provides: In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following: (14) Expert testimony concerning its use .... Further, A.R.E. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact of issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 816 S.W.2d 884 SUPPLEMENTAL OPINION ON REHEARING OCTOBER 14, 1991 Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for petitioner. William R. Simpson, Jr., Public Defender, Omar F. Greene II, Deputy Public Defender, by: Bret Qualls, Deputy Public Defender, for respondent. However, such an evidentiary error by the trial court does not mean that a jury conviction can be affirmed on appeal by the appellate court’s consideration of matters which the jury did not hear. Our Court of Appeals has expressly held that such evidence may not be considered. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). We agree with the reasoning of that case. The State cites the case of Webster v. Duckworth, 767 F.2d 1206 (7th Cir. 1985) as authority for the proposition that, upon trial court evidentiary error, evidence proffered by the State may be considered by an appellate court to affirm a conviction. We do not so read the case. The conviction for aggravated robbery is affirmed; the conviction for possession of drug paraphernalia is reversed and dismissed.

DAVID M. GLOVER, Judge. | Appellant, Clayron Rasberry, argues that the trial court erred (1) in placing custody of the parties’ minor son with ap-pellee, Anessa Rasberry, and (2) in disposing of certain real property. We affirm. A temporary hearing was held on the issue of custody of the parties’ minor child. Finding neither party unfit and specifically qualifying the ruling to be subject to change at the final hearing, the trial court granted temporary custody to Clayron. The temporary custody award to Clayron turned on a May 7, 2007 incident involving Anessa’s employment at UAMS. That day she was told by her supervisor that she was not going to be able to continue her employment in the science laboratory where she worked. Though the supervisor 12denied using the word “terminated” and testified that she was satisfied with Anes-sa’s work and wanted to help her find another position, it was Anessa’s position that her supervisor had told her she was terminated. Immediately following the May 7 conversation, Anessa left the build ing and went to her car, where her supervisor later found her sitting in the driver’s seat rocking back and forth, nonresponsive to verbal communication. Her supervisor thought that Anessa was having some type of anxiety attack and called for paramedics and the police. It was reported that Anes-sa had then stated that she was going to kill herself and her children; however, none of the witnesses at the temporary hearing testified to hearing Anessa make those statements. As a precaution, Anes-sa was taken to the hospital, and was determined to be okay. Anessa admitted that the May 7 incident had happened, and that it was an anxiety attack. She stated that she received no follow-up treatment after the incident because she was advised that she was “fine.” Anessa blamed the anxiety attack on a combination of the stress from Clayron, which included bringing his fifteen-year-old son from a previous marriage into the home without consulting her and expecting her to care for him in addition to her son from a previous relationship and the parties’ child, as well as the news that her supervisor was terminating her. The trial court awarded temporary custody to Clayron. While noting that it was understandable that Anessa was upset over being informed that she was being terminated, the trial court stated that it could-not understand why Anessa’s conduct rose to a level where Rfirst responders and police officers were called out. The trial court reasoned that while Anessa had admitted to Clayron that she did not handle stress well, everyone has to deal with stress at one point or another, and that you have to keep going and do the best you can do. Noting that it had not heard that Clayron had trouble dealing with stress, under the circumstances, the trial court awarded temporary custody to Clayron. At the final hearing, the only issues before the trial court were permanent custody of the parties’ minor son and division of the residence in which the parties lived during the marriage. Prior to the final hearing, the trial court ordered both parties to undergo psychological evaluations. These were sent' to the trial court and made part of the record as the court’s exhibit. At the close of all the testimony, the trial court took the case under advisement. The trial court issued a letter opinion on September 10, 2008, citing the court-ordered psychological and custody evaluations of both parties, the trial court’s notes, and the file, finding that the evidence preponderated in favor of awarding full custody of the parties’ child to Anessa. In a second letter dated September 12, 2008, the trial court added these remarks: both parents were fit and proper parents, the trial court’s opinion was based upon the best interest of the parties’ minor child, and no specific findings of fact or conclusions of law were noted in the letters because the hearing was closed. Clayron requested that the trial court make specific findings of fact and conclusions of law, and on September 19, 2008, the trial court held a closed hearing for that purpose. In |„that hearing, the trial court stated that the parties were both fit and proper parents, appeared to be moral persons of character, were generally stable, and had extended family members who could assist them. It also noted that while Anessa was terminated from her employment at UAMS, it was only for a temporary period of time, and that she was currently still employed at UAMS in her original position. It noted that Clayron’s employment with the railroad required him to be away from home from time to time, while Anessa’s employment did not require her to travel. The trial court not ed that it was not bound by the court-ordered evaluations of the parties and that it determined the weight to be accorded to the evaluations. The trial court then recited the summary of the findings of the evaluations: We find that both Clayron and Anessa Rasberry show capacity to be good parents. We also find that both have significant issues in terms of anxiety, stress, and anger management. However, Mr. Rasberry’s problems in these areas seem greater than those of Anessa Rasberry. Therefore, it is our recommendation that custody of [the minor child] go to his mother with [his] father having liberal visitation privileges. It is also our recommendation that both parents seek therapy for issues concerning anxiety and anger management. The trial court noted that each party’s evaluation discussed the incident concerning Anessa’s being fired from her job at UAMS, problems in the marriage, each party’s background and medical history, and why each party thought they were a better custodial parent, and concluded with the examiners’ impressions. The trial court found that, when the evaluations were given the appropriate weight, the evidence preponderated in Anessa’s favor. Custody | ¿Clayron argues that the trial court erred in awarding custody of the parties’ minor child to Anessa instead of him. Specifically, he argues that the apparent anxiety attack Anessa experienced, coupled with the fact that she failed to seek counseling for the incident, “militates the conclusion that the circuit court’s decision does not serve [the child’s] best interests.” We disagree. In Sheppard v. Speir, 85 Ark.App. 481, 489, 157 S.W.3d 583, 588 (2004) (citations omitted), this court recited its well-settled standard of review for child custody: ■ In reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court’s findings unless they are clearly against the preponderance of the evidence. A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. We know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. In his brief, Clayron states that while he does not necessarily dispute the trial court’s determination that, in this particular case, the question of the child’s best interests hinges upon which parent experiences greater problems with anxiety, stress, and anger management, he does dispute the conclusion that his problems with anxiety, stress, and anger management are greater than those of Anessa and that the award of custody to Anessa serves the child’s best interests. This argument seems to be based upon the fact that Anes-sa experienced an anxiety attack on May 7, 2007, and did not seek further treatment or counseling for the [f,incident, while he has not experienced such an attack. The May 7 incident was thoroughly addressed throughout these proceedings and in both parties’ psychological evaluations, as well as in this opinion. There is no evidence that the May 7 incident was anything oth er than an isolated event experienced by Anessa. The psychological examiners, with full awareness of the incident, recommended that custody of the parties’ child be placed with Anessa. The trial court, being in the best position to evaluate the parties, viewed each party’s demeanor, heard all of the evidence in this case, and set forth a detailed and thoughtful analysis for its decision to grant custody to Anessa. We cannot say that the trial court’s decision was clearly against the preponderance of the evidence. Residence During Marriage Clayron also argues that the trial court erred in its disposition of the parties’ real property. While the parties agreed on the disposition of all other property, they asked the trial court to dispose of the residence in which they lived during the marriage. While specifically conceding that the residence was Anessa’s separate, nonmarital property, Clayron contends that the trial court erred in not considering “his contribution to the marital residence in its disposition of the property.” Clayron points to testimony from Brian Castle, a real-estate mortgage-loan officer at the Pine Bluff Cotton Belt Federal Credit Union, that the property was sold at a discount by Clayron’s sister-in-law as an early wedding gift. His testimony was that the loan, although in Anessa’s name, would not have been made without Clay-ron, as he was the credit-union member, and his salary was also considered when making the loan. He 17stated that the loan was made with the understanding that the parties would be married. Clayron offers these reasons why the trial court should have awarded him some of the equity in the residence as compensation for his contributions to the residence. With respect to the division of property in a divorce case, the appellate courts review a trial court’s findings of fact and affirm them unless they are clearly erroneous. Powell v. Powell, 82 Ark.App. 17, 110 S.W.3d 290 (2003). In Powell, the husband owned a farm prior to marriage that was subject to a mortgage of $141,508 at the time of marriage, and that debt was reduced to $5,800 at the time of the divorce. The trial court awarded the wife one-third of the reduction of the indebtedness; on appeal, she argued that the trial court erred in not awarding her one-half of the reduction in indebtedness. The appellate court affirmed the trial court, holding that [i]t is true that there is a presumption that an increase in the value of nonmari-tal property resulting from the time, efforts, and skill of a spouse is regarded as a marital asset. However, a mere reduction in a single item of indebtedness is not the same thing as an increase in the overall value of the property, which would require evidence of the fair-market value of the farm both before and after the marriage. There is evidence in the present case regarding the value of the farm at the time of the divorce, but we find nothing in the record that would allow the trial judge to determine the premarital value of the farm. Without evidence of the before- and-after value of the property to show the existence and extent of any increase in the value of the nonmarital property, any reduction in debt on nonmarital property is not considered to be marital property to be divided equally; instead, the non-owning spouse is simply entitled to have the martial contribution considered in balancing the equities involved in the property division. 82 Ark.App. at 19-20, 110 S.W.3d at 292 (citations omitted). |s In this case, Clayron placed into evidence a letter from his sister-in-law, Toni Middleton Rasberry, stating that the last appraised value, to her knowledge, was approximately $99,000, and that the property was being sold to Anessa Haney for the discounted price of $88,000 as an early wedding gift. This letter was written in January 2005, approximately two months before the parties’ marriage in March 2005. This was the only evidence of the value of the residence prior to the marriage. No evidence was presented as to the value of the residence at the time of the parties’ divorce, nor was there any evidence of the amount of reduction of indebtedness. However, Anessa testified that she paid 99.9% of the bills. Clayron argues in his reply brief that because the parties settled all other property and debt-related issues between themselves, the trial court never had the opportunity to consider his marital contribution to the residence, and he submits that this court should remand the case to the circuit court to take evidence as to the value of the property during the relevant time periods. We disagree. Clayron had an opportunity to submit evidence to the trial court regarding his contributions to the nonmarital real property that served as the parties’ residence during the marriage, and he failed to do so. Given that failure of proof, we cannot say that the trial court erred in awarding Clayron no financial benefit from the residence. Affirmed. GLADWIN and HENRY, JJ., agree.

M. MICHAEL KINARD, Judge. I i Travis Taylor appeals from his conviction for murder in the first degree, for which he received a sentence of forty years in the Arkansas Department of Correction. His sole point on appeal is that the trial court erred in denying his proffered jury instruction on the lesser-included offense of manslaughter. We affirm. A Crittenden County jury found appellant guilty of first-degree murder for the shooting death of David Harold Clark, Jr. The evidence presented at trial showed that appellant pulled up in front of Clark’s house driving a white Chevrolet Caprice on the afternoon of November 13, 2007. Clark was standing in the yard with two other individuals. Appellant called Clark over to his car, and the two spoke briefly. According to witnesses, they did not appear to be engaged in a heated argument. 12AppelIant pulled out a gun, and Clark began backing away from the vehicle. Clark said, “Man, I told you, sh** like that don’t scare me.” Appellant responded, “Oh, .what? You shooting, you shoot?” Clark continued to back away, saying, “Man, go on.” Appellant’s passenger testified that when appellant first pointed the gun, he (the passenger) pushed it down and told him to put it away. Appellant raised the gun again, told the others in the yard to move out of the way, and fired on Clark, hitting him three times. A videotape of appellant’s statement to police was entered into evidence without objection. On the tape, appellant stated that a couple of weeks prior to the fatal shooting Clark shot at his car when he was at a stop sign on Clark’s street. According to appellant, the day of the fatal shooting, Clark said, “Don’t come riding by my house unless you have your pistol with you.” When appellant responded that they could “fight like men,” Clark said, “I don’t fight. You better have a pistol.” Appellant then cocked the gun, expecting him to run. When Clark did not run, appellant said he believed that Clark had a gun. However, appellant conceded that he “was never shown a gun.” A person commits manslaughter if the person causes the death of another person under circumstances that would be murder, except that he or she causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. Ark.Code Ann. § 5-10-104(a)(1)(A) (Supp.2009). The reasonableness of the excuse is | ¡¡determined from the viewpoint' of a person in the defendant’s situation under the circumstances as he or she believes them to be. Ark.Code Ann. § 5-10-104(a)(l)(B). Appellant sought to introduce the AMCI jury instruction on extreme-emotional-disturbance manslaughter, but the trial court denied his request, finding “that based on the evidence before the court there is no rational basis for giv[ing] [the jury] the emotional disturbance manslaughter instruction.” It is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Morris v. State, 351 Ark. 426, 430, 94 S.W.3d 913, 915 (2003). We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id. An appellate court will not reverse a trial court’s decision regarding the submission of such an instruction absent an abuse of discretion. Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005). To qualify for the applicable manslaughter instruction, there must be evidence of a provocation resulting in an extreme emotional disturbance. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). Our supreme court has written We have held repeatedly that, in order for a jury to be instructed on extreme-emotional-disturbance manslaughter, there must be evidence that the defendant killed the victim in the moment following some kind of provocation, such as “physical fighting, a threat, or a brandished weapon.” Passion alone will not reduce a homicide from murder to manslaughter. 14Boyle v. State, 363 Ark. 356, 362, 214 S.W.3d 250, 253 (2005) (citations omitted). A trial court’s decision not to instruct the jury on extreme-emotional-disturbance manslaughter has been reversed where the appellant shot his lover after she had threatened to tell his wife about their affair and attempted to shoot him. See Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). In that case, Rainey testified that after the victim’s threat an argument ensued, the victim pointed a gun at him, he grabbed her hand, and a shot was fired into the ceiling. He took the gun away from her and shot her four times in the head as she was falling to the floor. The supreme court reasoned: The jury was presented with evidence that Rainey shot Kirkpatrick while in a fit of anger aroused by being threatened with a gun. The jury could have believed that this anger provoked an extreme emotional disturbance for which there was a reasonable excuse, and thus it could have found Rainey guilty of manslaughter rather than murder in the first degree. Rainey v. State, 310 Ark. at 424, 837 S.W.2d at 456. Likewise, in Whittier v. State, 84 Ark.App. 362, 141 S.W.3d 924 (2004), this court, citing Rainey, held that the trial court had erred in refusing to give a manslaughter instruction to the jury. In Whittier, there was evidence that the victim shot at the appellant twice before his gun jammed; the appellant then pulled his own gun and shot the victim. Appellant argues that the prior shooting incident, coupled with Clark’s statements on the day of the fatal shooting, indicated that Clark might be armed. This was sufficient, he contends, to provide both provocation and the resulting passion that must be shown for |sa manslaughter instruction to be warranted. The State contends that there was not adequate provocation for a manslaughter instruction. We agree that a manslaughter instruction was not warranted under these facts. The evidence showed that appellant is the one who approached the victim, and their initial contact was a mere exchange of words in “normal” voices. Appellant’s perceived threat in this situation did not provide a “reasonable excuse” for appellant to shoot the victim under a claim of extreme emotional disturbance because from the evidence it is clear that appellant was free to drive away at any time. Further, the victim was backing away from the car when appellant began to shoot, and he was unarmed. We hold that the trial court did not abuse its discretion in declining to instruct the jury on manslaughter. Affirmed. PITTMAN and BROWN, JJ., agree.

HART, J., (after stating the facts). The court was of the opinion that the timber deed was ambiguous and permitted the plaintiff to testify that he sold the defendant the oak and gum timber on all the lands mentioned in the deed, which was 20 inches and over in diameter 12 feet from the stump, and did not sell on any land the oak and gum timber under 20 inches in diameter 12 feet from the stump. On the other hand, the defendant claims that he bought all the gum and oak timber on the northeast quarter of said section 35 both over and under 20 inches in diameter. The court also embodied the contention of the plaintiff in its instruction to the jury and left it to the jury to decide whether the contract was as contended for by the plaintiff, or by the defendant. The court was right in holding the contract to be ambiguous; but was wrong in permitting the plaintiff to testify that it was the intention of the parties to except from the terms of the contract all of the oak timber under 20 inches in diameter 12 feet from the stump in the northeast quarter of section 35, and in submitting the plain tiff’s contention, in this respect, to the jury. The contract contains two descriptions of timber sold, each of which is perfectly clear in itself, but which are mutually inconsistent and contradictory. The words, “all the timber save the hickory on the northeast quarter of section 35,” when used by themselves are perfectly clear and indicate that all the timber of whatever kind and size which is situated on section 35, except the hickory timber only was sold. The words, “all the gum timber on all of the above described lands measuring 20 inches in diameter above 12 feet from the stump,” when used by themselves are equally clear and indicate that only the gum timber measuring 20 inches in diameter, etc., was sold. It is manifest, however, that the two clauses following each other as they do in the contract are contradictory and make the contract ambiguous. If the draftsman had used the words, ‘ ‘ all the gum timber on the rest of the above described lands” instead of the words “all of the gum timber on all of the above described lands,” it is obvious the contract would have the meaning contended for by the defendant. On the other hand, if the draftsman had used the words, “all the timber save the hickory timber and the oak and gum timber under 20 inches in diameter,” etc., on the northeast quarter of section 35, instead of the words, ‘ ‘ all the timber save the hickory timber on the northeast quarter of section 35, ” it is clear that the contract would have the meaning contended for by the plaintiff; but as above stated, the terms of the contract as they now stand are inconsistent and contradictory. The general rule is that parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a written contract; but where the language of the contract is ambiguous, this rule does not prevent the introduction of parol evidence to ascertain the meaning of the parties as expressed in the written instrument. This is in application of the settled rule that parol evidence is competent to show the relations of the parties and attendant circumstances as an aid in interpreting or construing a written instrument which is uncertain and ambiguous. Jones v. Lewis, 89 Ark. 368; Wood v. Kelsey, 90 Ark. 272; Wilkes v. Stacey, 113 Ark. 556, and Selig, Recvr., v. Phillips County, 129 Ark. 473, and cases cited. The reason that such testimony is received is that it merely aids in determining the true meaning of the language used and does not contradict, vary, add to, or take away from the writing. As said in Hammond v. Capitol City Mutual Fire Ins. Company, 151 Wis. 62, Ann. Cas. 1914 C., Vol. 33, p.57, “The meaning so arrived at must not be inconsistent with the language of the writing, but it may limit such language to a particular meaning which is included therein, 'and exclude another meaning which the language may also bear. The office of such testimony is, within the meaning of the terms employed in the writing, to render certain that which is uncertain, and to determine just what in fact the writing was intended to express.” The rule is well stated in Boden v. Maher, 105 Wis. 539, 81 N. W. 661, 32 L. R. A. (N. S.) 389, where the court said: 1 ‘ Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it is quite another thing. The former is not permissible. * * * The latter is permissible, and is often absolutely essential to show the real nature of the 'agreement. * * * Both rules are elementary and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence either in regard to what was said at the time it was made or prior thereto; the other aids in determining what the contract is when its lan guage, either in its literal sense or as applied to the fact, is obscure. The one is a rule to preserve the contract as expressed in writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meaning of the language they chose to express it; and that rules of construction to discover it are not to be resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction often leads to error. ’ ’ To allow plaintiff to prove by parol testimony that the oak timber under 20 inches in diameter 12 feet from the stump on the northeast quarter of section 35, was intended to be excepted from the terms of the contract would necessarily contradict the written instrument. To allow him to prove by parol testimony that it was their intention to except the gum timber less than 20 inches in diameter 12 feet from the stump would not contradict the written instrument, but would tend to explain its terms which are, as written, uncertain and ambiguous. It follows that the court erred in allowing the plaintiff to show that it was the intention of the parties to except any oak timber from the provisions of the contract; but the court should have only allowed him to show that it was their intention to except gum timber less than 20 inches in diameter 12 feet from the stump on the northeast quarter of section 35, and then have submitted to the jury the determination of the question of whether the plaintiff or defendant was right in their respective contentions. The action of the court in giving instruction No. 3 on the measure of damages is also assigned as error. The instruction reads as follows: “If you find for the plaintiff, then you should determine from the evidence, first, the amount of timber wrongfully taken under 20 inches in diameter 12 feet from the stump, and then its proven value on the spur track and at Ivan is the measure of plaintiff’s damages, and your verdict should be, if you find for the plaintiff, for the value of the timber at such points at which the timber was piled, namely, the spur track and Ivan. ’ ’ The defendant, if a trespasser, was under the facts disclosed by the record, an innocent one, and the measure of damages in cases of this sort, where the property has been cut by an innocent trespasser and delivery cannot be had, is the value of the property in its converted form, less the labor expended on it, provided such expense does not exceed the increase in value. Eaton v. Langley, 65 Ark. 448, and Randleman v. Taylor, 94 Ark. 511. It will be noted that the instruction in question did not contain the qualifications prescribed in the cases just cited and for that reason was erroneous. For the errors indicated in the opinion, the judgment must be reversed and the cause remanded for a new trial.

SMITH, J. An instruction numbered 1 given by the court below states the issues of fact out of which this litigation arises, and we copy it as constituting in part a statement of the facts: “1. In this case the plaintiff, Tom Longino, as administrator of the estate of Don Longino, deceased, sues the defendant, Poinsett Lumber & Manufacturing Company, to recover damages, and alleges that in connection with the operation of defendant’s business in the town of Trumann, it has a series of tanks so constructed as to hold boiling water, and that said tanks are enclosed by movable covers over the same, said covers being so constructed that they may 'be raised or lowered by means of weights; that said tanks are at all times kept closed by said covers except when the employees of the defendant company are engaged in placing timber in them to be steamed, or taldng timbers from them before being manufactured. Plaintiff alleges that on the 14th day of December, 1916, his intestate, Don Longino, was in the employ of the defendant company, and while in the discharge of his duty, and without fault upon his part, and under the direction of the person in authority and control, was required to go to a place at or near the end of said row of tanks and in undertaking to perform said duty fell into one of said tanks containing boiling water and as a result thereof was injured, from which injuries he died on the 4th day of March, 1917; that said injury was the result of the carelessness and negligence of the agents, servants and employees of said defendant in failing to keep the door of the tank into which deceased fell, closed, and in carelessly and negligently allowing the same to remain open; that the conditions of the-door of said tank was unknown to said deceased and could not have been known to him in the exercise of ordinary care for his own safety.” We adopt the designations employed in the instruction set out and will refer to the injured servant as the deceased and to the corporation by which he was employed as the defendant. The injury of deceased, and his death as a result of his injuries, is admitted, but the defendant denies that it was guilty of any negligence, and alleged that the danger of falling into the tank was obvious and was a risk assumed by the deceased, and that deceased fell into the tank as a result of his own carelessness or of some accident for which it is not responsible. Complaint is made of certain instructions given by the court over defendant’s objection. And it is also insisted that no case was made for submission to the jury. And, in addition to these defenses, it is insisted that the court erroneously excluded certain testimony relating to the mental capacity of deceased at the time he executed a release to the defendant, which was offered in evidence. Deceased was a man of intelligence, thirty-two years old, and, according to the testimony offered on behalf of his administrator, had begun work on the day preceding his injury about noon and was injured about 6:40 a. m. the next day. There were twenty-six of these tanks, and in obedience to the order of his foreman deceased went to the opposite end of the row of tanks to deliver an order and in returning fell into one of the tanks by reason of the door having been left open by some employee other than deceased. The steam arising from the tanks with the fog which it formed, combined with the lack of light at that hour of the day, rendered it impossible for him to see the open tank and thus avoid the injury. Deceased’s screams attracted the attention of one Wood, his fellow servant, who pulled deceased from the tank of boiling water, and as he did so deceased asked who had left the door of the tank open. Deceased and Wood were designated as hookers, it being their business to fasten the hooks into the blocks, that were being manufactured, for the purpose of drawing them out of the tanks. On the part of the defendant the testimony was to the effect that it was the duty of deceased and Wood to open and close the doors of the tanks on which they were working, and that only one tank was supposed to be open at a time, and that if for any reason any other door was open it was their duty to close it. That the order to this effect was given, not only to keep the water boiling hot, but to prevent employees from falling into the tanks. The court gave a very elaborate charge, and the instructions told the jury that no recovery could be had if it was the duty of deceased to close the door of the tank into which he fell, unless the door had been left open by some employee of defendant other than deceased and deceased did not know and in the exercise of ordinary care could not have known that the door had been left open. So that the case was submitted to the jury to determine whether or not deceased had left the door open and, if not, whether he was guilty of negligence in having failed to close it. And a recovery would also have been denied under the instructions given if deceased had been guilty of negligence in falling into the tank, although he did not leave it open and was not guilty of negligence in failing to see that it was closed. These were the questions of fact which have been resolved against defendant, by the verdict of the jury. The circumstances stated made a question for the jury whether deceased was guilty of contributory negligence ; and likewise supported the finding, which the jury must have made, that the injury was not the result of one. of the assumed risks of the service. It is very earnestly insisted that no recovery should be had because the injury had resulted from the deceased’s violation of a rule or order promulgated for his own protection and that of other employees, in that he did not see that the door of the tank not at the time in use was closed. But the jury was told that if it appeared from the evidence that it was the duty of the deceased to close the door of the tank into which he fell, and that he failed to do so, then there would be no liability on the part of the defendant for the injury sustained. The court properly refused to tell the jury that there could be no recovery if Wood, or some other employee, left the door open, because an instruction to that effect would have imposed upon deceased the assumption of the risk resulting from the negligence of a fellow-servant, and employees of corporations have been relieved by statute from the assumption of that risk. The instructions did tell the jury that no recovery could be had if deceased was guilty of negligence in being ignorant of the fact that the door was open, and the defendant was not entitled to a more favorable declaration of the law. There was testimony to the effect that it was the duty of deceased and his fellow-servant Wood to remain at the mill until 6 p. m., when all other employees had quit work for the day, and before leaving the mill to see that the doors of all the tanks were closed, and instructions were asked, and refused, which declared the law to be that deceased could not recover “if he did not perform this duty and that one of the doors which he should have closed was left open and that on the following morning he fell through such door into the tank and was burned.” But, as has been stated, two employees were charged with the duty of closing the doors and of seeing that they were closed, There were twenty-six of these tanks, and the duty of closing their doors was not to be discharged by deceased alone, but by him and his fellow-servant, and inasmuch as the deceased was not charged with the assumption of the risk of his fellow-servant’s negligence the jury had a right to pass upon the question whether deceased was negligent in assuming that his fellow-servant had discharged his duties in closing the doors which deceased himself had not closed. Deceased did not in fact assume the risk of injury from Wood’s negligence in leaving the door open unless he knew or in the exercise of ordinary care should have known that Wood had been guilty of negligence in leaving the door open, and the law on this question was fully declared in the instructions given. Instructions given told the jury there could be no recovery if deceased had himself left the door open or was guilty of negligence in failing to see that it was closed, and defendant had no right to ask a more-favorable declaration of the law. After his injury deceased was sent to a hospital in Jonesboro, where he endured suffering beyond description; yet after about thirty days’ treatment he had sufficiently improved to make it apparently safe to send him to the home of his father, where he greatly desired to go. Before leaving the hospital he executed a release, which was attacked at the trial upon the ground that deceased did not understand and appreciate the effect of his action in signing it; and testimony was offered to that effect which was legally sufficient to sustain the jury’s finding that the deceased did not appreciate the effect of his action when he signed the release, as the instructions told the jury there could be no recovery if deceased did understand and appreciate the nature, quality and effect of his act in signing the release. The defendant first called the attending physician to prove by him that the deceased’s mental condition was such that he appreciated the nature of his act in signing the release; but objection was made to this testimony on the ground that the answer to that question would be based upon information which the physician had acquired from the patient while attending him in a professional capacity and which was necessary to enable him to prescribe as a physician. The physician testified that he was present at the time the release was signed, not for the purpose of then treating the patient, but for the purpose only of seeing that the patient was properly packed on the cot on which he was to be shipped to his father’s home. The physician would have testified—had he been permitted so to do—that in his opinion the deceased knew and appreciated what he was doing when he signed the release. This testimony was properly excluded, as the witness had been the attending physician from the time he first saw deceased immediately after the injury until deceased left the hospital, and any information he had or any opinion he may have expressed would have been based upon information thus acquired. Triangle Lumber Co. v. Acree, 112 Ark. 534. No error appearing, the judgment is affirmed.

SMITH, J. Appellants are owners of lands lying in the Arkansas-Louisiana Highway Improvement District, and pursuant to section 13 of the act creating that district filed suits in the chancery court of the county in which their lands are located to have their assessments revised. The interests of these complaining land owners are not identical, and they have attacked their assessment on different grounds. Indeed, to grant relief to some of them on the grounds assigned would result in denying relief to others. For instance, certain of these landowners say that the assessment of benefits should be levied on the lands throughout the district as a whole, and each tract should bear an equal and uniform burden of the cost; while one of the land owners whose lands received the lowest assessment insists that his lands should not have been assessed at all. The relief prayed was denied by the chancery court, and this appeal has been-prosecuted to review that action. It is insisted that a gross inequality exists between certain lands in Chicot County in township 15 south, range 2 west, and township 16 south, range 1 west, and other lands in the district, because the lands in Chicot County are nearer the road to he improved, yet hear a less amount than other lands farther away. But these lands in favor of which it is said a discrimination has. been made are situated on the east hank of Lake Chicot— a body of water as wide and and as deep as the Mississippi River and eighteen miles long—which lies between the road and the lands which are said to have a grossly inadequate assessment against them. We think there is less merit in this contention than there is in that of the owners of the lands lying east of the Lake that their lands should not he assessed at all. Those owners base their contention upon the grounds that the lake is unbridged, and that the owners of lands east of the lake would make but little use of the highway if it were improved. However, it is shown that a ferry is operated across the lake and that once the property owner is across the lake he has connection with the largest system of improved roads ever undertaken as a single enterprise iii this State. This assessment was made by “zones,” the eighth zone being charged with the lowest assessment, and it is shown that these lands east of the lake were reduced from the second to the eighth zone by the commissioners when the assessment of benefits was made, upon the complaint of the property owners. Other property owners complain of their assessments because a drainage ditch thirty-six feet wide lies between their lands and the improved road, and the argument is made that they should not, therefore, he assessed at all. But we think the argument is without merit. These ditches can he bridged. Other owners complain that they will not use the improved road after 'it is constructed but that it will be more convenient for them to continue to use the unimproved roads which they are now using, and this contention is presented with great earnestness, and it is insisted that for the reasons stated these owners, who will not use the improved road, should pay but little, if any, of the cost of the improvement. We announced the rule to be followed by this court in the decision of questions of this character in the case of Mo. Pac. Ry. Co. v. Monroe County Road Improvement Dist., 137 Ark. 568, 209 S. W. 728, where it was said: “An estimate of benefits resulting from a local improvement to a given piece of property is largely a matter of opinion, and generally there is a wide difference of opinion on such questions. Under those circumstances a great amount of deference is due to the judgment of the board of assessors who are constituted as a special tribunal for the purpose of determining that question, and courts reviewing the proceedings of the assessors should not substitute the judgment of the judges .for that of the assessors, unless the evidence clearly shows that the assessments are erroneous.” When that test is applied we do not feel warranted in disturbing the assessments made by the commissioners. The question is not what the usable value of a road is to a particular tract of land, but to what extent has the improvement enhanced the value of the land. It is against this enhanced value or betterment that the tax is levied to pay for the construction of the improvement which is to bring about the enhanced value. One owner of land might use a road which neither his predecessor nor suoccessor in title would use. But it appears fair and reasonable to say that land must necessarily be benefítéd or enhanced in value by having an improved road constructed in such proximity that the land owner may use the' road if he desires to do so. The assessments on the lands of the complaining owners run from two to six dollars per acre, the payment of which is extended over a period of twenty years, and in return for this they are given access to highly improved roads of a total length of one hundred and fifty-five miles through a territory where, according to the agreed statement of facts, the existing roads are impassable at certain seasons of the year. It may be true that inequalities.exist in the assessments; but, as the question of values and benefits is largely one of opinion, we are constrained to approve the assessments as made by the commissioners as revised by the court below (that revision consisting in striking from the assessment rolls the lands lying outside of the Mississippi River levee which had inadvertently been assessed), because we can not say that the evidence clearly shows that the assessments are erroneous. The decree is, therefore, affirmed.

McCULLOCH, C. J. Appellant was convicted of the offense of selling intoxicating liquor, and the principal contention on this appeal is that the evidence was not sufficient to sustain the verdict. . The testimony of one Boss was the only .direct testimony tending to establish appellant’s guilt. Boss testified that he obtained money from one Mr. Swaim with which to buy whiskey, and that he purchased the whiskey from appellant in Lonoke County, where the venue in the case is laid in the indictment. Boss was rigidly cross-examined, and according to his testimony as copied in the record he was to some extent vacillating and uncertain in some of his statements,-but he testified that he, purchased the liquor from appellant. His credibility was a question for the jury, and we cannot say that there was not substantial evidence in support of the verdict. Appellant was introduced as a witness and denied that he sold whiskey, but this contradiction was a question for the jury to determine whether or not appellant was, beyond reasonable doubt, guilty of the offense charged in the indictment. It is next contended that certain remarks of the prosecuting attorney in his opening statement to the jury before the testimony was introduced constituted prejudicial error. The remarks objected to, as copied in the record, were as follows: “The prosecuting witness, George Ross, after making and inquiring and having information as to the defendant selling whiskey, and another man by the name of Strong, and talked with him about the matter.” The remainder of the statement of the prosecuting attorney is not brought into the record and we have no means of knowing definitely just the connection in which this remark was made, but we assume that it was a part of the preliminary statement leading up to an outline of the testimony of the witness Ross. The substance of the remark is that the prosecuting witness, after receiving information as to the defendant selling whiskey, talked with him about it and proceeded to buy the whiskey. It does not appear to have been an effort on the part of the prosecuting attorney to introduce hearsay testimony, nor does it appear that the remark was made otherwise than in good faith in an attempt of the officer to correctly outline to the jury the testimony which he expected to introduce for their consideration. Good faith is generally the test in passing upon the conduct of such an officer in his preliminary presentation of a case to the jury. McFalls v. State, 66 Ark. 16. According to the test we do not think that there has been any prejudice to the rights of appellant so as to call for a reversal of the judgment. Objection is made that the prosecuting attorney was permitted to interrogate appellant on cross-examination concerning the commission of other offenses, but that was for the purpose of reflecting upon his credibility as a witness, and was competent. It has been so decided in numerous cases in this court. Other matters are argued here as grounds for reversal, but the record fails to show that exceptions were saved concerning those matters. Judgment affirmed.

HUMPHREYS, J. Appellee instituted suit against appellants in the Miller Chancery Court to prevent the sale to a third party of the “California Plantation” on Red River in said county. The basis of the suit was a written contract entered into by and between appellee and one R. L. Grant, of date September 25, 1916, providing, in substance, that appellee should become the tenant of appellants on said property for a period of five years, beginning on the first day of January, 1917, and ending on January 1,1922, for the use of which appellee was to pay all the taxes on the estate during the period and to clear 200 acres of land and make other valuable improvements. The last clause in the contract was an agreement on the part of R. L. Grant to sell the plantation to appellee at the expiration of the lease for $10 per acre for the lands east of the levee, and $20 per acre for the lands west of the levee. The final issues presented.' by the several pleadings and the evidence adduced were (a) whether appellee was a tenant for a five-year term or merely a tenant from year to year; (b) whether appellee had the right to purchase the plantation on or before January 1,1922. Upon hearing, the court found and decreed that appellee was a tenant of appellants for a term ending the 1st day of January, 1922, and that appellants were not obligated to sell the lands to appellee. Appellants have appealed from the findings and decree adverse to them, and appellee has prosecuted a cross-appeal from the findings and decree adverse to him. The plantation was formerly owned by Joseph Boisseau, the father of all the appellants except R. L. Grant, who was his son-in-law. Joseph Boisseau died owning this plantation in the year 1906, leaving seven children, four of whom owned the plantation at the time this suit was instituted. Mrs. Bessie S. Grant owned three-fourteenths, Miss Nettie Boisseau six-fourteenths, Mrs. Augurs three-fourteenths, and Joseph Boisseau, Jr., two-fourteenths. Joseph Boisseau, Jr., was of unsound mind and resided with his duly appointed guardian, W. C. Augurs, who had authority by virtue of his guardianship to lease, but not sell, his ward’s interest in said plantation. Dr.R.L.Grant and Bessie S. Grant, his wife, lived at Texarkana, near the plantation, and the other appellants at Shreveport, Louisiana. Dr. R. L. Grant assumed the management and control of the plantation by and with the consent of the other appellants. The place had been neglected and had little productive value. In 1910, Dr. Grant rented the place to M. B. Armstrong for a term of three years. Armstrong was to make certain improvements in lieu of rents, but failed to make them and had to give up the place. In 1911, he rented the property to appellee for a term of five years, to end on the 31st day of December, 1916, the consideration being that appellee should clean up all the ground that had formerly been in cultivation and make improvements, for which he should be paid a certain proportion of the cost in case the prop erty was sold and appellee compelled to move off before tbe expiration of his lease. In 1913, a levee district was organized which included a part of this plantation. The levee was completed in the fall of 1916. In the organization of the district, and the construction of the levee, appellee represented the other appellants in all transactions with the levee board, such as agreeing upon the value of the right-ofway, receiving’ damages therefor, etc. For purposes of better representing* them, the other appellants at the time conveyed him five acres of land within the district. This deed was never placed of record and Dr. Grant never claimed any interest in the lands under it. It was treated as a matter of form only. On the 25th day of September, 1916, several months before the expiration of the old rental' contract between R. L. Grant and appellee, appellee and Dr. It. L. Grant entered into the written contract made the basis of this suit. Appellee continued to occupy the place under this written contract, two years, during which time he felled the timber on 100 acres of land inside the levee and placed 10 acres thereof in cultivation, built seven houses, ranging in size from two to five rooms, and in cost from $250 to $1,500, a barn, a crib, fences, etc., drove seven wells in which he placed pumps, and built two overhead cisterns. The total amount expended by him for improvements was about $6,500. He also paid the county, State, and a part of the levee taxes. The plantation produced from 90 to 120 bales of cotton and about 4,000 bushels of corn per year, in addition to a large amount of grass used for pasturage. Appellants authorized Dr. R. L. Grant to control and rent the plantation, but thought the rental contracts were made from year to year with the privilege of selling it at any time. In the exercise of the authority conferred upon him, he managed and rented the property after Joseph Boisseau died in 1906, in the language of some of the witnesses, just as if he owned it. During the long period of his supervision, the other appellants exacted no accounting, required no report concerning the details of his management, nor the character of rental contracts made by him. Appellants knew in a general way that the property was rented for taxes and improvements. They also knew that appellee had occupied the place for years as tenant and had made valuable improvements thereon. From time to time, they communicated with each other concerning the general management and conduct of the place by Dr. Grant. They also gave him authority to find purchasers for the property, and, during the existence of the written contract with appellee, confirmed a contract of sale made by Dr. Grant to Mrs. Black of 200 acres off of the tract known as the “Kitchen Bend.” On several occasions after making the written contract, Dr. Grant urged appellee to take advantage of his option to purchase the land under the contract. Finally, appellee concluded to do so, but discovered that appellants had agreed to sell the plantátion to Mr. Young for $30,000, which was $12,000 more than the consideration provided in appellee’s option. It is contended by appellants that Dr. Grant had no authority to make a five-year rental contract for them with appellee, and that, if such authority existed, it was not conferred in writing and therefore void under the statute of frauds. After a careful reading of the evidence, we are, convinced that Dr. Grant was a general agent of the other appellants for the purpose of renting the California plantation. He was permitted to control and manage it just'as if it were his own place for many years. No restrictions whatever were placed upon him with reference to renting it. The most that appellants say is that they understood he was renting it from year to year with the privilege of selling it at any time. This understanding was due entirely to the carelessness or neglect of the other appellants. They knew of the long tenure of appellee and of the valuable improvements he was placing upon the property, and, in the exercise of the slightest diligence, could have ascertained from Dr. Grant or appellee the character of appellee’s occupancy. They do not claim that they expressly placed any restrictions upon Dr. Grant in conferring authority upon him to manage and control the property. Even if the evidence warranted the conclusion that restrictions had been placed upon him, there is an entire absence of any showing that they notified appellee of the restrictions. The execution of the rental contract for a term of five years was clearly within the apparent, if not the actual, scope of Dr. Grant’s authority, and appellants, who were the real owners of the land, are bound by the rental contract. Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301; Brown v. Brown, 96 Ark. 456; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79; Three States Lumber Co. v. Moore, 132 Ark. 371; Grossett Lumber Co. v. Fowler, 137 Ark. 418, 208 S. W. 786. Appellant insists that the contract of rental made by R. L. Grant with J. B. Burrows was void because R. L. Grant had no written authority from the other appellants to lease the land. In support of appellants’ contention, our attention is called to section 3664 of Kirby’s Digest. This court has held in several cases that authority may be conferred by parol to sell real estate for another. Daniels v. Garner, 71 Ark. 484; Kempner v. Gans, 87 Ark. 221; Davis v. Span, 92 Ark. 213; Vaught v. Paddock, 98 Ark. 10. The court, however, has not passed upon the question whether authority to lease real estate for another for a longer period than one year can be conferred in parol, and it is unnecessary to determine that question in the instant case, because, if the statute were applicable, the undisputed proof establishes the fact that appellee complied with the terms of the contract to the extent of paying the county, State and a large part of the levee improvement taxes, and placing improvements to the value of about $6,500 upon the property, which greatly enhanced its value. It has been held that such a partial performance of a rental contract by the tenant takes it out of the operation of the statute of frauds. Phillips v. Grubbs, 112 Ark. 562; Storthz v. Watts, 117 Ark. 500. Appellee, cross-appellant, earnestly insists that the court erred in refusing to decree a specific performance of his option to purchase said lands, and asks for a reversal of that part of the chancellor’s decree. There is an entire lack of evidence showing any general authority conferred on Dr. Grant by the other appellants to sell the California plantation. It is true that authority was conferred upon Dr. Grant to represent the other appellants in the organization and construction of a levee built across the property, in the matter of granting a right-of-way and agreeing to and receiving the damages therefor. This authority had reference to a single transaction, however, and general authority to sell the plantation is not properly inferable from such a special agency. It is also true that the other appellants confirmed and acquiesced in a contract of sale made by Dr. Grant to Mrs. Black, of 200 acres off of the tract in question known as the “Kitchen Bend,” but the mere fact that they approved this sale does not warrant the conclusion that they had made him their general agent to sell the land without consulting them; nor can the inference be drawn that, because he had general control and management of the property for rental purposes, he likewise had authority to execute an option contract for the sale and purchase thereof at some future date. This court has said that general authority cannot be inferred from authority given to perform a particular act, and that a person dealing with a special agent whose authority is confined to a single transaction or a particular act must ascertain the extent of his authority and contract accordingly before it will be binding upon the principal. Liddell v. Sahline, 55 Ark. 627; Mutual Life Ins. Co. v. Reynolds, 81 Ark. 202; Jonesboro, Lake City & East. Rd. Co. v. McClelland, 104 Ark. 150; Three States Lumber Co. v. Moore, 132 Ark. 371. No error appearing, the decree is in all things affirmed.

HART, J., (after stating the facts). It is contended by counsel for the defendant that the court erred in refusing to give instruction No. 5 asked for by him. The instruction reads as follows: “If you find from the evidence that the witness Parker, did not purchase the liquor from Malone, but was acting as his agent and that he was an accomplice in the sale alleged to have been made by the witness, Parker, to other persons, then unless you find from the evidence in the case that the said witness, Parker, has been corroborated on some material fact in this transaction, you will find the defendant not guilty.” The Attorney General first contends that there is no evidence upon which to predicate this instruction. He contends that the testimony of Chris Parker only warranted the jury in finding that he had purchased the liquor from the defendant. In Springer v. State, 129 Ark. 106, the court held that in a prosecution for the illegal sale of liquor, the purchaser is not an accomplice of the seller, and the statute requiring corroboration of the testimony of an accomplice to sustain a conviction does not apply in such ,a case. Hence he contends that the court did not err in refusing the instruction. The weakness of the argument lies in the fact that the jury need not necessarily have found that Parker purchased the liquor from the defendant although it might have done so. Parker testified on cross-examination in response to questions asked him that the liquor belonged to Malone .and that he acted as Malone’s agent in selling it. Although he had stated on his direct examination that he himself had purchased the liquor from Malone, when his whole testimony is read together, the jury would have been warranted in finding that he acted as agent for the defendant in selling the liquor. In this view of the case the instruction .asked for by the defendant and refused by the court was not abstract, but was a correct instruction submitting to the jury the defendant’s theory of the case, that the prosecuting witness was the agent of the defendant in selling the liquor and was not a purchaser of the liquor from the defendant. The defendant’s theory of the case was not presented to the jury in any other instruction given by the court. It is true the court did instruct the jury in substance that in order to find the defendant guilty it must find that Chris Parker purchased from him a case of intoxicating liquor, or some other amount of intoxicating liquor for the sum of $70, or for any other price; but the instruction as given only submitted to the jury the State’s theory of the case and did not submit to it the theory of the defendant. It has been uniformly held by this court that a party has the right to a statement to the jury both of the principles of law controlling his case, and of the specific application of the principles to the facts in evidence. In other words, the defendant has a right to insist upon a concrete application of the legal principle involved to the facts in evidence, and a declaration from the court that these facts, if believed by the jury to be true, call for the application of the principle. The court submitted to the jury the State’s theory of the case and refused to submit that of the defendant. Such action tended to confuse and mislead the jury and constituted prejudicial error calling for a reversal of the judgment. For the error in refusing to give instruction No. 5 asked for by the defendant, the judgment will be reversed and the cause remanded for a new trial.

HART, J., (after stating the facts). Section 1494 of Kirby’s Digest provides that the county judge with a majority of the justices of the peace shall constitute a court for levying and making appropriations for the expenses of the county. Such court is usually called the quorum or levying court. Section 1499 of Kirby’s Digest, after providing that the court shall proceed to the making of appropriations for the expenses of the county for the current year, provides that said appropriations shall be made in the following order: “1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, stating the expenses of each of said courts separately. ' “2. To defray the expenses of keeping persons ao cused or convicted of crime in the county jail. “3. To defray the expenses of making assessment and tax books and collecting taxes on real and personal property. “4. To defray the lawful expense of public records of the county or district. “5. To defray the expense of keeping paupers of the county or district. ‘'6. To defray the expense of building and repairing public roads and bridges and repairing and taking care of public property. “7. To defray such other expenses of county government as are allowed by the laws of this State. “8. After the appropriations shall have been made, the court shall then levy the county, municipal and school taxes for the current year. ’ ’ The publicity act might have directed the quorum court to' make a specific appropriation to be used in carrying out the provisions of the act, but it did not do so. It then becomes necessary to examine the paragraphs of section 1499 of Kirby’s Digest above quoted to ascertain if the contract in question falls within any of those provisions. The purpose for which the appropriation is to be used is plainly designated in the first six paragraphs and it is evident that the contract in question is not covered by an appropriation for any of these purposes. The seventh section provides for an appropriation to defray such other expenses of county government as are allowed by the laws of this State. The language of paragraph seven is very broad and comprehensive, and includes any expense of county government at any time while the act is in force. This would include' expenses of the county government made by acts subsequently passed as well as those which were so classed at the time of the passage of the act. The Legislature made it mandatory upon the county clerk to publish in a newspaper a list of all claims allowed against the county, etc. This necessarily gave the county clerk the power to make a contract for such publication. The amount so expended by him became an expense of the county government, and an appropriation made under paragraph seven of section 1499 was available to pay such claim. The record in the present case does not show that any appropriation was made by the quorum court under paragraph seven of section 1499; but, on the contrary, the agreed statement of facts shows that no such appropriation was made. Section 12, article 16, of our Constitution provides that no money shall be paid out of the treasury until the same shall have been appropriated by law and then only in accordance with said appropriation. In Dickinson v. Clibourn, 125 Ark. 101, the court said that an appropriation denotes the setting apart or assigning to a particular use a certain sum of money for a specific purpose in such manner that public officials are authorized to draw and use the sum so set apart and no more, for the purpose specified and no other. Under the principles of law announced in that case an appropriation was necessary before the court could allow the claim and-issue a warrant therefor. It is insisted by counsel for Nevada. County that an appropriation was necessary before the county clerk could make the contract in question. We do not agree with counsel in this contention. The section of the Constitution in question places no limitation upon the power of the county court or the agents of the county in regard to making contracts. The object of this provision of the Constitution was to prevent the payment of any funds until an appropriation was made therefor. It places a limitation upon the authority of public-officials in paying out public funds; but it did not undertake to place a limitation upon the power of the Legislature to declare what might be proper subjects of expenses of government. Hence the Legislature had the authority to declare that a contract like the one in question should be an expense of the county government. Again, it is insisted by counsel for Nevada County that the allowance for the payment of the claim in question is void under section 1502 of Kirby’s Digest. The section reads as follows: “No county court or agent of the county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended.” We do not think that section has any application to this case. The section is a part of an act approved March 18, 1879, providing for the organization of a levying court and defining its power with regard to making appropriations for the expenses of the county government. In the case of Fones Hardware Co. v. Erb, 54 Ark. 645, it was held that a contract for building a county bridge made without a previous appropriation therefor by the levying court was void. The reason given was that, by the express terms of the act, the concurring judgment of the levying court and of the county judge that' a bridge should lie built was necessary before a contract for building it could be made. As we have already seen, the levying court was created by the Legislature and the power given it was expressly conferred by the Legislature. Hence the Legislature has all the power it could give to the levying court. In the present case the Legislature itself, by an act passed for that purpose, commanded the county clerk, without the concurrence of the levying court, to make the contract in question. This made it an expense of county government, and all that remained for the levying court to do was to make an appropriation for the payment of it. The Legislature acted directly in the matter and thus exempted the publicity act from the provisions of seotionl502 of Kirby’s Digest. This follows from the principles of law laid down in Burrett v. Buxton, 63 Ark. 397, and Hilliard v. Bunker, 68 Ark. 340, where the court held that the special act authorizing the county court to make an order for the building of a court house or jail whenever it shall think it expedient to do so was not repealed by what is now section 1502 of Kirby’s Digest, which requires an appropriation before a contract can be made by the county court or other agent of the county. It was there said that it was hardly reasonable to suppose that the Legislature would require the permission of the levying court to make a contract which it had already made the duty of the county court to enter into and perform. So in the present case it is not reasonable to think that the Legislature intended to require the concurrence of the levying court in making a contract which it made it the duty of the county clerk to enter into and perform under a heavy penalty. It follows from the views we have expressed that the contract was a valid one but it was not subject to allowance by the county court because, so far as the record discloses, no appropriation had been made for. its payment. It follows that the judment must be reversed, and the cause will be remanded for a new trial.

HART, J., (after stating the facts). The decision of the chancellor was correct. It is well settled in this State ■that where the owner sells land to another and executes a bond for title, the effect of the contract is to create a mortgage upon the land in favor of the vendor to secure the purchase money subject to all the incidents of a mortgage as effectually as if the vendor had conveyed the land by absolute deed to the vendee, and had taken a mortgage back to secure the purchase price. It is equally well settled that, upon the failure of the vendee to pay in accordance with the terms of the contract, the vendor may proceed by a bill in equity to foreclose the equity of redemption and sell the lands for the payment of the debt. Higgs v. Smith, 100 Ark. 543, and cases cited. The lien of Ward upon the 160 acres of land in question to secure the purchase money notes executed to him by Manwaring, was in the nature of a mortgage, and when he transferred the notes to the Bank of Benton and the Farmers Bank of Commerce to secure the amounts which he had borrowed from them, the lien passed with them and the banks had the right, by subrogation, to foreclose the lien. Martin v. O’Bannon, 35 Ark. 62, and Calhoun v. Ainsworth, 118 Ark. 316. These principles are conceded; but counsel for Manwaring claims that the vendor’s lien on the land in question was terminated because Ward had by a deed from Manwaring taken back the land. It is claimed that the effect of the reconveyance was to extinguish the vendor’s lien on the land. It is true the general rule is that where one having a vendor’s lien on land becomes the owner of both the legal and equitable title by reconveyance, the lien is extinguished, still there are exceptions to the rule, and this is one of them. The purchase money notes given by Man-waring to Ward were transferred before their maturity respectively to the Bank of Benton and the Farmers Bank of Commerce as collateral security for an' amount of money which Ward had borrowed from each bank. While Ward was still indebted to each bank and the notes were in the possession of the banks as collateral security for his indebtedness, Manwaring reconveyed the land to Ward and attempted to cancel the notes which he had executed to Ward for the purchase price of the land. This he could not do. So far as the banks were concerned there could be no merger of the legal and equitable title in Ward by a reconveyance of the land to him by Man-waring. Manwaring knew that the notes given by him to Ward for the purchase price of the land were outstanding and not yet due at the time he reconveyed the land to Ward. Therefore, in order to protect himself, he should have required Ward to have surrendered the notes to him before or at the time he executed the deed to Ward. Driver v. Lacer, 124 Ark. 150. Manwaring alone has appealed, and it is unnecessary to consider the correctness of the decision of the chancellor as to the other defendants. It follows that the decree must be affirmed.

HUMPHREYS, J, Appellant, in his individual capacity, brought suit before a justice of the peace in Fulton County against Andrew Dowdy, to recover a certain gray horse of the value of $100. The affidavit filed by appellant to obtain delivery of the personal property stated that appellant was the owner of, and entitled to the immediate possession of, the horse. An appeal was prosecuted to the circuit court of Fulton County from the judgment rendered in the magistrate’s court. On the call of the case in the circuit court, appellant filed a motion to substitute himself, as natural guardian and next friend of his son, Herbert Irby, a minor, seventeen years old, as plaintiff in his place and stead. The motion was overruled, over the objection and exception of appellant. The cause then proceeded to a hearing before a jury. Appellant testified, in substance, that his oldest son bought the horse in question, through his direction, for his son, Herbert Irby, who was at the time residing with, and assisting, his oldest son in making a crop ; that the horse was paid for out of that portion of the proceeds of the crop belonging to Herbert; that Herbert kept the horse on the farm during the crop season, and that he traded him to appellee for a crippled horse; that appellant never had any control over, or the possession of, the horse, nor did he ratify or confirm the trade made by his son with Robert Dowdy. At the close of appellant’s testimony, the court instructed a verdict for appellee and rendered judgment dismissing the action. Prom the verdict and judgment an appeal has been duly prosecuted to this court. The verdict was instructed and the action dismissed for the reason that the undisputed evidence disclosed that appellant had no interest in the horse. Appellant insists that the court erred in refusing to permit him to .substitute, in his place, as plaintiff, himself as guardian and next friend of his son, Herbert Irby, who was the real owner of the horse in question. Had the suit been instituted in the first place by any one as the next friend of Herbert Irby, it would have been within the discretion of the court to have substituted his natural guardian, or any other person as his next friend, for the next friend who had first brought the suit. Wood v. Claiborne, 82 Ark. 514; Nashville Lumber Co. v. Barefield, 93 Ark. 353. In the suit supposed, the infant would have been the real party in interest, and not the party who represented him, and the substitution of the natural guardian or another person as next friend would not have the effect of bringing a new cause of action. Freeman v. Lazarus, 61 Ark. 247; St. Louis, I. M. & S. R. Co. v. Hoist, 71 Ark. 258; Haydon v. Haydon, 98 Ark. 480; Buckley v. Collins, 119 Ark. 231. While it is true that section 3757 of Kirby’s Digest provides the natural guardian shall have the custody and care of minor children and their estates, it does not follow that they can maintain suits in their individual names for their children’s property, for it is provided by section 6021 of Kirby’s Digest that “The action of an infant must be brought by his guardian or his next friend.” Unless the minor was included as a party plaintiff when the action was brought, his inclusion thereafter would amount to the institution of a new suit. This court said, in the case of State v. Rottaken, 34 Ark. 144, quoting the fourth syllabus: “Where a plaintiff shows in his complaint that he has no cause of action, the court can not amend it by making others plaintiffs who have.” This rule of pleading was reaffirmed in the case of Schiele v. Dillard, 94 Ark. 277. In approving the rule, the court said, “The appellants sought by amendment to their complaint to substitute new parties defendant. This could not be done. WThile the court may in its discretion allow additional parties plaintiff or defendant to be added or struck out, it can not make an entire change of parties plaintiff or defendant. That would be' tantamount to a new suit between entirely different parties.” It is suggested by appellant that the ruling of the court prohibiting him from prosecuting the suit in his individual name caused his son, Herbert Irby, to suffer the loss of a horse valued at $100. We do not understand that the dismissal of appellant’s complaint in any way prejudiced the rights of his son, Herbert Irby. Herbert Irby was in no sense a party to the suit, and his title to the horse was not adjudicated. Notwithstanding the dismissal of appellant’s suit, he was at liberty to institute another as the guardian and next friend of his minor son for the recovery of the horse in question. No error appearing, the judgment is affirmed.

WOOD, J. This action was brought by the appellee as administratrix of the estate of J. H. Cuffman against the appellants. The action was based on a promissory note in the sum of $952.85, which the appellants had executed to J. H. Cuffman and to secure the payment of the note they had also executed a deed of trust on 180 acres of land in Clark County. W. E. Haynie was named as trustee. Appellee alleged that Cuffman died March 17, 1917, and that she was duly appointed administratrix of his estate; that appellants executed the note March 23, 1913, which was due January 1,1914; that the sum of $950 had been paid on the note, leaving a balance due of $240.79, for which she prayed judgment. She asked that same be declared a lien on the lands described in the deed of trust and if the judgment be not paid that the land be sold to satisfy her claim. The appellants demurred to the complaint in the court below, one of the grounds being that appellee “was not a proper party and was without legal capacity to sue.” The demurrer was overruled. The appellants answered, denying that they were indebted to the estate of Cuffman. They alleged that the estate was indebted to them and asked for judgment against the estate. W. E. Haynie intervened and asked to be made a party and set up that he had acquired title to the lands described in the deed of trust and denied that appellee had a right to foreclose the same and asked that the suit be dismissed. After hearing the testimony the court rendered a decree in favor of the appellee against the appellants for the sum of $298 with interest and declared the same a lien on certain of the lands described in the decree. Appellants by this appeal seek to reverse the decree. The appellants contend, first, that the court erred in overruling their demurrer for the reason that W. E. Hay nie, the trustee in the deed of trust given to secure the note upon which the suit was based, was not named as a party plaintiff. In other words, the appellants say that the trustee was the real party in interest and that he alone could maintain the suit. Appellants did not raise this objection in the court below. Their specific objection was that appellee was not a proper party and was without legal capacity to sue. There is no doubt that the administratrix of the estate of a creditor who desired to foreclose a mortgage taken in his name is a proper, even if not a necessary, party to a suit. The administratrix is the legal representative of the estate for the purpose of - collecting all debts due the estate and before there could be a foreclosure of the mortgage it would have to be ascertained that there was an indebtedness which the mortgage was given to secure against the debtor and -in favor of the estate. As the mortgage was taken for the benefit of the estate the administratrix was at least a proper party to bring suit and to establish the claim in favor of the estate. But appellants now contend here for the first time that there was a defect of parties because the trustee in the mortgage was not also made a party plaintiff. That particular objection not being raised in the court below was waived by the appellants and can- not be taken advantage of here for the first time. In Murphy v. Myer, 95 Ark. 33, we said: “It is provided in 6093, Kirby’s Digest, that a demurrer may be interposed upon the ground that there is a defect of parties. This must specifically be made a ground of demurrer.” By section 6094, Kirby’s Digest, it is provided, “that the demurrer shall distinctly specify the ground of objection to the complaint; unless it does so it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action.” See also Love v. Cahn, 93 Ark. 215. Moreover, although the trustee was not nominally a party plaintiff for the purpose of foreclosing the deed of trust, he Avas in fact a party to the suit by his interven tion. The court, therefore, had all of the parties in interest before it and could make all the necessary orders protecting their rights. Haynie, the trustee, is not complaining and has not appealed. It is also contended by the appellants that the books of account of J. H. Cuffman were erroneously admitted and considered in evidence for the reason that no sufficient foundation was laid for their introduction. The. view we entertain upon another branch of the case makes it unnecessary to dispose of this contention. For it may be conceded for the purposes of this decision that the books of Cuffman wrere properly introduced and that these books tended to prove an indebtedness of the appellants to the estate of J. H. Cuffman in the amount claimed. Nevertheless appellants contended and the undisputed evidence shows that the appellants had a settlement with J. H. Cuffman before his death. Haynie testified on this point as follows: “I was trustee in mortgage appellants gave Cuffman on their land; Cuffman told me amount they owed on the note and mortgage; he said that Swinton owed him eleven hundred and twenty some odd dollars; Cuffman asked me if I would help Swinton get a loan on the land; I told him I thought he could get $1,000 loan on place; Cuffman then stated that he had sold Swinton a mule for $125, and he would take the mule back, and the $1,000 cash and that would pay the note and settle the matter. They were unable to get loan on account of being negroes. I tried to get Cuffman to take deed to place and get loan and pay himself; said he didn’t want to be bothered with it, and asked me to take a deed to place and get loan on it. I took deed to lands, borrowed $1,000 on the place, which cost a commission of $50, and $950 was paid to Doctor Cuffman on the mortgage. Cuffman released lands in his mortgage called the home place. * * * The mule was returned and $950 paid to Cuffman, which Cuffman said paid all but $50. Cuffman didn’t have me employed as his attorney to attend to this matter ; paid me no money for my services in this matter; I have no interest in this matter one way or another, and will be affected by no judgment that may be rendered in this matter.” The record shows that the appellee amended her complaint so as not to include the lands that were claimed by intervener Haynie and the decree did not embrace those lands. Haynie, as the pleadings and his testimony show, had no interest in the final termination of the cause and was at most a mere nominal party to the suit. He was, therefore, a competent witness to prove any conversations and transactions between Cuffman and the appellants. St. Louis, S. F. R. R. Co. v. Fithian, 106 Ark. 504; Walden v. Blassingame, 130 Ark. 448 (197 S. W. 1170); Brown v. Brown, 134 Ark. 380, 203 S. W. 1009. Appellee introduced no testimony to show that Haynie was acting in the capacity of an attorney and that the conversations of Cuffman with him were privileged communications. The testimony of Haynie, on the contrary, shows that he was acting only in the capacity of a trustee. His testimony shows conclusively that appellants and Cuffman compromised any differences and settled whatever indebtedness was due from appellants to the appellee by agreeing to pay to Cuffman the sum of $1,000 and returning the mule. Appellants accepted the terms of the settlement, paid to Cuffman the sum of $950 and returned the mule. Under the terms of the settlement this left the sum of $50 due the estate of Cuffman, for which the appellee should have a decree. The facts bring this cause within the doctrine announced by this court in Whipple v. Baker, 85 Ark. 439; Ingham v. Neal, 89 Ark. 385. For here the facts show that the minds of the parties had fully met and a new agreement°had been made, which was accepted in satisfaction of whatever indebtedness there was due from the appellants to Cuffman. The facts thus clearly distinguish this case from the recent case of Ledwidge v. Ark. Nat. Bank, 135 Ark. 420. The decree is, therefore, reversed and the cause will be remanded with directions to the chancery court to enter a decree in favor of the appellee against the appellants in the sum of $50, the balance shown to be due on their compromise settlement, and for further proceedings according to law and not inconsistent with this opinion.

WOOD, J. Pone Dean and Ms father, M. H. Dean, were indicted under separate indictments for the crime of murder in the second degree in the killing of Ford Robertson. The defendants moved to have the causes consolidated and tried at the same time. The motion set up “That both of said causes are of a like nature and relative to the same question and arose out of the same transaction and depend upon the same or substantially the same evidence. ’ ’ The motion was confessed by the State’s attorney and was granted by the court and the causes were consolidated. The trial resulted in the conviction of Pone Dean of the crime of murder in the second degree and in the conviction of M. H. Dean of the crime of manslaughter. From the convictions are these appeals. On the 26th day of January, 1919, there was a fight between Pone Dean and M. H. Dean, on one side, and Curtis Robertson and Ford Robertson, on the other, which resulted in the death of Ford Robertson. M. H. Dean was seventy-four years of age, and Pone Dean was thirty-six years of age. Curtis Robertson was about twenty years of age and Ford and Robert Robertson were young men but elder brothers of Curtis. The Deans and the Robertsons were farmers and lived in the same neighborhood. Pone Dean manned a sister of the Robertson boys. Prior to his marriage Curtis Robertson had lived with Pone Dean and his wife and he also lived with them for a short while after his marriage but had moved to his own home a few months before the encounter. The Deans and the Robertsons were on intimate and friendly terms until a month or more prior to the killing, when an incident occurred that engendered the enmity between the Deans and the Robertsons which finally culminated in the killing. Pone Dean relates the incident as follows: “Curtis borrowed my shaving mug and brush, and one Sunday I went by the house and asked his wife for the shaving mug and brush, and asked her to kiss me, and she did, and I went home. As I started off I told her for her Mid Curtis to come over that evening and we would go to the schoolhouse. I went on home and was shaving, and Cnrtis came along and stopped and talked awhile, and then went on towards home. In an hour or two he came back and came on the gallery with a pistol in his hand and stepped in and got his lantern and as he turned to go out he told me he wanted to talk to me. He walked about sixty yards from the house and he said, ‘My woman said you asked her to kiss you.’ I said, ‘Yes, what are you going to do about it?’ He said, ‘He wasn’t going to do anything and would let it drop where it was. ’ I told him that satisfied me if it satisfied him. There wasn’t anything more said, and I went back to the house. ’ ’ Mrs. Curtis Robertson, who was sixteen years ap age, gives her version of the incident as follows: “Some month or more prior to the killing, Pone Dean came to our home, when my husband was gone. He came to the door and pushed the door open and said to me, ‘Reckon anybody will catch us?’ I says ‘I don’t know,’ and he grabbed at me and asked me to kiss him. I told him, ‘No, sir, I wouldn’t do it.’ He told me if I told it he would kill Curtis. Up to that time Pone Dean and his wife were very close friends of myself and husband. The day Pone Dean came up there and asked me to kiss him was Sunday. He came for his shaving mug and brush. I told my husband about it that evening. My husband told it to his brothers, Ford and Robert.” It appears from the testimony in the record that neither Pone Dean nor his father, M. H. Dean, considered that Pone Dean, in the kissing of Mrs. Robertson, had been guilty of any act reasonably calculated to arouse the intense enmity of the Robertson brothers toward him; while, on the other hand, the testimony tends to show that the Robertsons were mortally offended. Ineffectual efforts were made to reconcile the families, and the above is the condition of mind that existed between them when they attended preaching services at a schoolhouse in the neighborhood-on the morning of the day of the fatal encounter, which was Sunday. There was testimony introduced by the State tending to prove that the defendants provoked and were the ag gressors in the fig’ht; while the testimony introduced for the defendants tended to prove the contrary. The testimony introduced by the State proved that Pone Dean killed Ford Eobertson with a pocket-knife of a large size called a “granddaddy” barlow; that he drew this knife and rushed toward Curtis Eobertson, who fled around the house with Dean pursuing him for a short distance, when he immediately returned; the testimony further tending to prove that in the meantime old man Dean was hitting Ford Eobertson with a club; that he hit Ford Eobertson three or four times, when Ford Eobertson knocked him down with his fist, and by that time Pone Dean ran up and stabbed Ford Eobertson in the back. On the other hand, the testimony introduced by the defendants tended to prove that Curtis Eobertson was armed with a pistol and that Ford Eobertson was armed with knucks and also had a pocket-knife; that words passed between Ford and Curtis Eobertson and Pone Dean; that Curtis and Ford Eobertson were approaching Pone Dean; that Curtis said, “If you want to fight, you son-of-a-bitch, get on me;” that Pone' Dean saw Curtis’ gun and started toward him, his purpose being to get close enough to keep Curtis from shooting him; that as he started for Curtis his father hit Ford and checked him; that after running Curtis around the house Pone Dean turned back, saw Ford knock his father down twice, whereupon he (Pone Dean) started on to Ford but before he got to him Ford turned, came about six feet toward him (Pone); that Ford had knucks and a knife in one hand and a club in the other and hit Pone Dean one lick with his knife and the next lick hit him on the head with the knucks and knocked him down, during which time Ford received at the hands of Pone Dean the fatal stabs with the knife. The testimony is voluminous and without setting out and commenting upon it in detail it suffices to say that it was a question for the jury, under the evidence, to determine whether or not Pone Dean and his father were the aggressors in the fight or whether or not Curtis and Ford Eobertson were the aggressors. It is the contention of the appellants that under the testimony adduced by them they acted in self-defense and in the defense of each other. It is the contention of the State, on the other hand, that the appellants brought on the fight and were the aggressors and that the killing of Ford Eobertson by appellant Pone Dean was the result of malice on his part, but without the deliberation and premeditation necessary to constitute murder in the first degree. In other words, that the appellants, under the evidence, were guilty of murder in the second degree. The principles of law governing the right of self-defense and the right of near relatives, such as father and son, to defend each other from assaults made with a deadly weapon with the intent to kill or inflict great bodily injury, are familiar and have been so often announced by this court that it could serve no useful purpose to reiterate them here. We find in the bill of exceptions the following: “After the court had examined and given or refused all the instructions which were marked either given or refused on the margin thereof by the court, and the instructions had been read to the jury, counsel for defendants tendered to the court the instructions in the record which are neither marked given or refused. Thereupon, the court made the following statement: ‘Gentlemen, you have three attorneys in this case for the defendants. When I asked that your instructions be submitted so I could examine them, you tendered me a set of instructions, and I examined them in connection with the set of instructions requested by the State and passed upon all your instructions and have given the instructions to the jury. Now you have tendered two other sets of instructions, which I cannot pass upon. You gentlemen should agree upon your instructions and submit them to the court and not submit three different sets of instructions.” It appears that appellant’s prayers for instructions contained sixty-nine separate statements of the law. While all the law applicable to a cause of this kind cannot be covered in one independent declaration, yet a careful scrutiny of the independent and separate prayers for instructions presented in the three sets presented by appellants’ counsel shows that in many of them the same idea is repeated many times. This manner of presenting prayers for instructions is not to be encouraged. Numerous instructions, many of them repeating the same idea, are well calculated, by their very multiplicity and repetition of thought, to confuse and mislead, rather than to enlighten, the jury. Counsel should succinctly present in as few prayers as possible the declarations of law applicable to the facts which the evidence tends to prove and which they consider essential to maintain their contentions. We have taken the pains, however, on account of the great importance of the issues involved, to carefully scrutinize the charge of the court, and we find that, when taken as a whole, it correctly declared the law as heretofore announced in numerous decisions of this court, and gave the jury a correct guide for their deliberations in determining the guilt or innocence of the appellants. Some of the instructions contain verbal inaccuracies and on that account are open to criticism. For instance, the seventh and eighth prayers for instructions, given at the instance of appellants, declared the law to be that the defendants had the right to act upon the circumstances as they appeared to the defendants and that if the language and conduct of the deceased were such as to induce in the mind of a reasonable man the belief, under all the circumstances existing, that they were in danger of death or great bodily harm at the instance of the deceased they would be justified in slaying him. These instructions omitted the essential that the defendants, in acting upon appearances of danger,-must have done so without fault or carelessness on their part. But this idea was embraced in other instructions, and it was an omission, too, favorable to the appellants and of which they could not complain. It would be better form, however, for each instruction along this line to carry that qualification. When the charge is taken as a whole, we do not regard it as calculated to mislead the jury and prejudice the rights of the appellants. In view of a new trial, however, which must be had on account of the error of the court in excluding certain evidence from the jury, the trial court will be under the necessity of again instructing the jury, when it will doubtless make corrections in the mere verbiage of some of the present prayers for instructions, if again offered, and will reduce their number so as to make a more concise and connected charge. Those of appellants’ prayers for instructions which announce correct principles of law and which were refused by the court we find were covered by other prayers which the court gave, either at the instance of the appellants or at the instance of the State. A few of the cases in this court announcing the principles of law applicable to the facts of this record, to which the charge of the trial court as a whole conformed, are as follows: Smith v. State, 59 Ark. 132; Carpenter v. State, 62 Ark. 286; Elder v. State, 69 Ark. 648; Lee v. State, 72 Ark. 426, 436; Pratt v. State, 75 Ark. 350; Mabry v. State, 80 Ark. 345; Wheatley v. State, 93 Ark. 409; McDonald v. State, 104 Ark. 317. There was no error in refusing to allow the wife of Pone Dean to testify, although Pone Dean and his father, M. H. Dean, were indicted for the same offense under separate indictments. Their motion to consolidate sets up “that both of the causes were of like nature and relative to the same question and arose out of the same transaction, and depended upon the same or substantially the same evidence.” The motion was tantamount to a request on the part of “the appellants for a joint trial and an admission on their part that the offense, if committed at all, was jointly committed. Under such circumstances the wife of Pone Dean, who was incompetent to testify as a witness in his behalf on his trial, could not well give testimony in the cause in favor of M. H. Dean that would not also inure to the benefit of her husband. The appellant M. H. Dean, therefore, waived any right he may have had, if any, under the circumstances to the testimony of Mrs. Pone Dean. See Carr v. State, 42 Ark. 204; Carey v. State, 37 Ark. 67; Collier v. State, 20 Ark. 36. Robert Toland, a witness for the State, on his direct examination, testified that Pone Dean ran up and stabbed Ford Robertson in the back. On cross-examination he was asked the following questions: “Q. Did you undertake to tell him, F. W. Short, and Mr. Coleman thereat the time (at the. Short house the night after the fatal encounter) about how this fight went off?” The witness answered, “Yes, I told them just how it occurred.” “Q. You told them just like it occurred here?” “A. Yes, sir. ’ ’ Later the witness Short was called and was asked these questions concerning the conversation between him and witness Robert Toland: “Q. Did he, in making his statement to you that night, say that Pone Dean stabbed Ford Robertson in the back?” The witness answered, “No, sir; he didn’t say that. He said, ‘Went to fighting with their knives.’ ” The court excluded the testimony of the witness Short, and there was no error in the ruling. The witness Toland, whose testimony the appellants were seeking to impeach by the witness Short, was not given an opportunity on his cross-examination to hear what the witness Short had said were his statements. He was merely asked if he had not discussed the case with Short and Coleman and if he had not told them how the fight went off and if he had not told them that it went off just like it occurred here. No proper foundation was laid for the impeachment of the witness. Jones v. State, 101 Ark. 439. Doctor McClure, who was called as a witness for-the State, testified that he was a graduate of medicine and surgery, having taken his degree from Tulane University. He testified that he examined the body of Ford Robertson on the day he was killed, and'testified as to the nature of the wounds. He also, on the same day, examined the wounds on Pone Dean. He found two wounds, each probably about half an inch long about an inch apart, one on the fore part of his forehead at the edge of the hair, and the other one on the left side, and another cut wound on his elbow, almost right in the elbow about a quarter of an inch long. He stated that they took a pair of brass knucks and a knife off the body of Ford Eobertson and he described each of these weapons. In the course of his' examination he stated, in answer to questions, that he did not think he had ever examined any knuck wounds more than one time. He was asked, “Could you tell from the examination the cause of the wounds on his head,” and answered, “I think not.” He stated that he did not think the wounds on Pone Dean’s head were made by naked knuckles. He was asked, “As a physician can you tell whether or not that wound was made with a metal instrument?” and answered, “Sometimes you can and sometimes you can’t.” He stated that the wound went to the bone. Further along he was asked the question, “After you had seen the knucks taken from Ford and comparing that with the print of the wound on the forehead of Pone Dean, did that knucks about fit that wound?” And the further question, “Did you, in your mind, compare the knucks and size of the knucks with the wound and size of the wound? Did you make any comparison in your mind as to them? You saw both? ’ ’ And the further question, ‘ ‘In your opinion, Doctor, was the wound on the forehead of Pone Dean caused by those knucks or similar to those ? ’ ’ The court refused to allow the witness to answer these questions on the ground that the witness had not qualified himself as an expert about knuck wounds. The court also refused to allow this witness to testify to the effect that in his opinion the wounds on Pone Dean’s head were made by the metal knucks. Now, the. testimony of the witnesses for the State who were eye-witnesses to the fight tended to prove that Ford Eobertson was not using metal knucks in the fight. Curtis Eobertson stated that he met his brother coming around the corner of the house after the fight holding his side, walking along by the side of the house, and “He did not have any weapons, such as a knife or knucks at the time.” Robert Robertson testified: “I did not at any time during the difficulty see Ford with a knife or pair of knucks. * * * Ford struck the old man and knocked him down; he hit him with his fist was all I saw. I did not notice any knife, weapon or knucks about Ford at that time.” Robert Toland testified: “He (old man Dean) hit him (Ford) some three or four times, and then Ford Robertson knocked the old man down with his fist. I couldn’t tell whether Ford had anything" in his hand. ’ ’ The witness, Yettetow, the preacher, testified that he did not see any part of the fight; after he got out of the house he saw the Deans and Curtis and Ford Robertson. Pone was standing at one corner of the house with his knife in his hand, a “granddaddy” barlow, and the old man, who was close to his son, had a stick in his hand. Curtis and Ford Robertson were fifteen or twenty feet from the Deans. He did not see anything in their hands. Another witness, who said he saw Pone Dean draw his hand with a knife and make a stroke and start at, or toward Ford Robertson, also testified that he “did not see either one of the Robertsons with a knife or pistol that day.” M. H. Dean testified: “I saw Ford Robertson with knucks in the house. He had them after he went to the door. Ford Robertson hit me with knucks, one lick was on the side of the head at the edge of the ear, and the other lick was on the cheek. The wound was swollen ten days. Pone was injured on the side of the head with cuts and his wounds made him mighty weak, and he fainted there on the ground.” Pone Dean testified: “I came back to protect my father, and before I got there Ford came toward me with his knife and knucks and a club. * * * He had his knucks in one hand and a knife in the same hand and a club in the other hand, and he hit me one lick with his knife, and I dodged the next lick, and the next lick he hit me on the head with his knucks, and that was the winding up of the fight.” The undisputed evidence proved that metal knucks were found on the dead body of Ford Robertson. But it was exceedingly important to the rights of the appellants to prove, if it could be done, that Ford Robertson had metal knucks just before and while he was engaged in the fight and that he was using the knucks in the fight. Now the testimony of Doctor McClure, if admitted, would have tended to prove that Ford Robertson used metal knucks during the fight, and in this way would have tended to corroborate the testimony of the Deans, and to discredit the testimony of the witnesses for the State that tended to prove that he did not use knucks. If it were a fact that Ford Robertson had metal knucks and was using them, this might justify or excuse the Deans in the use of force which otherwise they would not have been justified or excused in using. So the issue as to whether or not Ford Robertson was using metal knucks at the time he received the fatal wounds would be absolutely essential to the rights of the appellants, not only on the question of justification, but also on the question of the degree of guilt and the measure of punishment. The exclusion of the testimony, therefore, if competent, was highly prejudicial. Was it competent? The witness qualified as an expert physician and surgeon. He had personal observation, not only of the wounds on Pone Dean, but also of the knucks that were found upon Ford Robertson’s dead body. While he did not make a comparison by fitting the knucks over the wounds, yet, from his knowledge of the looks of each, he was able to make the comparison in his mind, and was of the opinion, from the character of the weapon found and the nature of the wounds produced, that the latter were caused by the former. In Brown v. State, 55 Ark. 593, 598, speaking of the testimony of an expert physician and surgeon, we said: “He may also give his opinion as to the nature of the instrument which produced a particular wound, the force required to produce it, and whether a given injury could have been inflicted by a weapon of a particular description.” While the witness had only observed a metal knack wound one time this was sufficient to show that he had some experience with such wounds, and the results from wounds and the treatment of same were in the line of his profession and qualified him to give his opinion, both as to the nature and result of the wounds as well as the kind of weapon that produced them. See also Miller v. State, 94 Ark. 536. The court erred in refusing to permit Pone Dean to testify that he received information from his wife that the Robertsons had made threats that they were going to run him out of the country or kill him. While a wife under our statute is not a competent witness in behalf of her husband, that rule does not exclude the testimony of a defendant to the effect that his wife had informed him of threats that were made upon his life. The defendant is a competent witness in his own behalf and he may give testimony like any other witness concerning any fact that is relevant to the issue. Whether or not threats have been communicated to a defendant in a case like this is a substantive and affirmative fact pertinent to the issue, and no one could be more competent to establish the fact than defendant himself. The appellants had adduced testimony tending to prove that a pistol was seen on Curtis Robertson while in the church, and that Ford Robertson also while in the house was seen with metal knucks; that their attitude there was most unfriendly, and after they passed out of the church that they became the assailants. There was a decided conflict in the evidence as to all these matters. The issue was sharply drawn as to whether appellants acted strictly in self-defense and in defense of each other, and were, therefore, justified in the killing, or, if not, of what degree of punishable homicide under the circumstances were they guilty. Where such are the issues, testimony of threats by the deceased against the defendant and communicated to him, as well as testimony of the general reputation of the deceased for turbulence and violence, is always admissible. As is said in Patmore v. The State, 29 Ark. 248: “Threats, as well as the character of the deceased, are admissible when they tend to explain or palliate the conduct of the accused. They are circumstantial facts which are a part of the res gestae whenever they. are sufficiently connected with the acts and conduct of the parties as to cast light on that darkest of all subjects, the motives of the human heart.” See also Bell v. State, 69 Ark. 148; Smith v. United States, Book 40, U. S. Supt. Ct. Reports (L. E.), p. 627. For the errors indicated the judgment is reversed and the cause is remanded for new trial.

SMITH, J., (after stating the facts). It is always a question of fact, and, in a large measure, a matter of opinion, as to what lands will be benefited by a particular improvement. Reasonable minds may, and do, differ on this question, and that difference continues to exist when the question of the amount of benefits is reached. ' Some one must be authorized to decide these questions, for it is inconceivable that there should ever be, or could ever be, unanimity of opinion upon a subject affording so wide a scope for difference of opinion. The Legislature has control of this subject, and it may appoint such agencies to make these findings as it sees proper to create, or it may make the findings on its own account, and when these findings have been made and have been properly declared in the recitals contained in legislative enactments the courts are bound thereby except for arbitrary or obvious and demonstrable mistakes. A number of cases have thus announced the law and what we have just said disposes of the last recited objection of the amici curiae, that the question of benefits is a judicial, and not a legislative question. Indeed, it is conceded that this court has frequently so decided, and we decline to overturn this line of cases. Applying, this test, we are unable to say that an obvious and arbitrary discrimination against Little Rock has been made. We can not say, in the face of the affirmative finding by the Legislature, that Little Rock will derive benefits from the construction of roads which are on the opposite side of the river, that no such benefits will be derived, for the city of Little Rock has direct connection with these roads over the free bridge across the river. It may be true that Little Rock will not derive as much benefit from the roads on the opposite side of the river as from those on its own side; but that is a question of fact about which we are not called upon to express an opinion. This question of benefits is one to be considered by the assessors, when the betterments are. assessed, and does not arise on this appeal. The contention that the act is an invasion of the jurisdiction of the county court is one which received deliberate consideration by the court in the recent case of Sallee v. Dalton, 138 Ark. 549, where a somewhat similar statute was under construction; and while the judges have differed, and do differ, upon this question, the majority are of the opinion that the act is not open to that objection. Sections 6 and 7 of the act make the plans for the improvement subject to the order and judgment of the county court, and if that court should disapprove the plans of any or all of these sections that district or those districts whose plans were disapproved could not be constructed. These sections are in fact separate districts, and it is made the duty of the county court to pass upon the plans of each of them. By section 5 it is provided that “if, for any reason, the improvement of one or more of the sections of said road as hereinbefore defined am^L numbered can not be carried out, it shall be the duty'of the commissioners to improve the remaining sections in the manner herein set forth.” Indeed, the third objection to the act contained in the statement of facts is that separate districts are required to prorate certain expenses. The portion of the act upon which this objection is based reads as follows: “The general expenses of the district inuring to the benefit of all sections shall be borne by the several sections in the proportion that the cost of the construction work in each section shall bear to the total cost of the construction work in all sections, and contributions from county, State and Federal aid shall be divided among the several sections according to its proportion insofar as this may not be altered by the law under which the contributions are made.” We think, however, that no legislative purpose is manifested to have one section bear any portion of the cost of any other section, for the expenses to be borne and prorated by all the sections are only “the general expenses of the district inuring to the benefit of all sections.” These sections constitute separate improvements, yet they are so closely related that certain expenses will be common to them all and to effect a saving to each section it is provided'that this common expense shall be apportioned according to the cost of the construction work. We see no constitutional objection to this arrangement. The objection that some new road may be improved is not well taken because this can not be done without the approval of the county court. In those cases in which this court has held that new roads could not be constructed we have done so because the burden of main taining these roads after their completion could not be imposed upon the county over the objection of the county court. 'But if the county is willing to assume this burden and the court having jurisdiction over the subject-matter approves plans for the construction of some new road which will eventually become a part of the county’s highways, we see no constitutional objection to changing the route of an old road or of opening up and improving a new one. The objection that both streets of a city as well as rural roads may be improved is not a valid one, and is met by the opinions in the cases of Nall v. Kelley, 120 Ark. 282, and Tarvin v. Road Imp. Dist., 137 Ark. 354, 209 S. W. 81, and Bennett v. Johnson, 130 Ark. 507. The act can not be held invalid because certain Lonoke County lands which are not taxed may be benefited. Improved roads must have termini, and the districts which are to bear the cost of their construction must have boundaries, and we can not say that the Legislature has acted arbitrarily in failing to extend the boundaries of this district into a county into which the improved road does not penetrate. The objection that the act offends against section 2 of article 12 of the Constitution must be considered as having been settled against the contention of the amicus curiae who makes that objection by the opinion of this court in the case of Carson v. St. Francis Levee District, 59 Ark. 513. Counsel ask us to reopen the question there decided; but inasmuch as that case was vigorously contested and was presented with great zeal and ability, and has since been regarded as one of the landmarks in our jurisprudence, and has been looked to as authority for the creation of numerous levee, drainage and road districts, we decline to reconsider the question here sought to be raised. We need not consider here the validity of those sections of the act which provide for the appointment of a receiver and grant immunity to the commissioners except for wilful misconduct, for if those sections were stricken from the aet a valid working statute would remain, and by section 29 of the act it is provided that “if any provision of this act is held to be invalid it shall not affect the remainder of the act.” * * * Snetzer v. Gregg, 129 Ark. 542; Sallee v. Dalton, 138 Ark. 549. We are required to resolve all doubts in favor of the constitutionality of legislative enactments, and when we have done so we are constrained to hold that the act is not unconstitutional in any of the particulars mentioned, and the decree of the court below to that effect is, therefore, affirmed.

McCULLUCH, C. J. Appellant’s intestate, C. L. Townes, owned a plantation in Crittenden County, and leased separate portions of it for the year 1917 to appellees, Milton Lewis, Ned Hall and Henry Croft. There was a printed form of lease used which described the quantity and location of the particular portion of the land to be rented to each tenant and specified, in substance, that the tenant should pay one-third of the crop to the landlord as rent, and should sell and deliver the crop, when harvested, to the landlord, and that the landlord should pay the tenants for cotton so delivered a price “within two cents of Memphis upland quotations, according to grade.” The contract contained another stipulation that the tenant should “prepare for, plant, cultivate and gather such crops of cotton and corn as may be mutually agreed upon, under the direction and supervision of the landlord or its agents.” Appellees each planted and gathered a crop of cotton for the year specified and delivered the same to the landlord, and this controversy arises concerning the price of the cotton to be credited to the accounts of the tenants. Townes sold the cotton on the Memphis market, and credited the tenants with the cotton at the price specified in the contract, that is to say two cents per pound less than the price of middling cotton on the Memphis market. It is agreed that that is what the language of the contract meant. The cotton was, however, of the long staple variety, and Townes sold the cotton on the Memphis market at a price largely in excess of the price at which he credited it to the tenants; the testimony establishing the fact that the cotton in fact brought more than forty cents per pound. Appellees instituted separate actions against Townes in the chancery court of Crittenden County for an accounting of the proceeds of the cotton sold from time to time, and for recovery of the amount according to the price actually realized on the sales. The cases were consolidated, and Townes died during the pendency of the action and the cause was revived in the name of the administrator. There was a decree below in favor of each of the appellees for the amount of the proceeds of the cotton according to the price actually received by Townes, after deducting the accounts for supplies furnished, and an appeal has been prosecuted to this court. The basis of the suit of appellees, in the face of the letter of the contract, which fixed the price of the cotton to be within two cents of the price of middling cotton on the Memphis market, is the following state of facts which the testimony adduced fully establishes, or at least a finding to that effect is not against the clear preponderance of the testimony. In the negotiations between the tenants and the landlord before the signing of the contract it was represented to the tenants by the landlord that the kind of seed known as Wannamaker seed would be furnished to the tenants for planting purposes, and each of the tenants agreed to the use of that kind of seed, and, after the contract was entered into and planting time came and the seed was furnished, the landlord still represented to the tenants that the seed furnished was of the Wannamaker variety, but those representations were false, and the seed actually furnished and planted by the tenants was a kind known as Foster seed. Wannamaker cotton is a medium staple variety and very prolific, the average yield from that variety being greatly in excess of the Foster variety, which is shown to be very long staple and not so prolific. The tenants preferred the Wannamaker .seed because it was more prolific, and-the testimony shows that that was the variety agreed upon between the parties. Now, it is contended that the letter of the contract should control, as under established rules of evidence all antecedent statements and agreements during negotiations are merged in the written contract and can not be proved by parol testimony which varies the writing itself. The answer to that contention is that the contract does not specify the variety of cotton to be planted. In fact, one of the clauses of the contract leaves that open to mutual agreement, and the testimony shows that there was in fact an agreement as to the kind of cotton to be used and that Townes fraudulently and surreptitiously violated the agreement by substituting Foster seed instead of Wannamaker seed. Even if the clause of the contract referred to did not apply to the selection of the seed, then it would follow that the contract leaves that question open, and the tenant would have the right to make his own selection as to the variety of the seed, and if by deception and fraud he was induced by the landlord into planting the kind of seed which was contrary to the tenants’ selection, then the landlord should bear the loss and not the tenant. The tenants preferred the prolific variety of cotton rather than the long staple, and hád the right to make the selection, and it was a fraud on their rivhts for the landlord to furnish another variety of seed without their consent. The substitution was prejudicial to the interests of the tenants and very much to the benefit of the landlord, for under its operation the tenants raised long staple cotton with the disadvantage of a short yield, and received only short staple prices, whilst the landlord sold the cotton at long staple prices and accounted to the tenants only for the much smaller short staple prices. The testimony shows that Townes received nearly double the price for the cotton at which he accounted to the tenants, and this resulted from the wrongful substitution of the variety of seed agreed upon. The evidence shows that the tenants did not ascertain that a different variety of seed had been furnished until they were about ready to gather the crop, but they did discover it then, and it is further contended that the fact that me tenants, with knowledge of the change m kind of seed furnished, gathered and delivered the crop constitutes a ratification of the act of the landlord m furnishing a different variety of seed than that agreed on and that the tenants are on that account estopped to claim a price in excess of that specified in the contract; The rule of law is invoked that where parties are. induced, by fraud to enter into an executory contract they waive tne fraud by proceeding with performance after discovery of the fraud. An exception, however, to that rule is that where the contract is executed in whole or in part before the fraud is discovered, performance does not constitute a waiver. McDonough v. Williams, 77 Ark. 261; Thompson v. Libby, 36 Minn. 287. The tenants had expended their time and labor in planting and cultivating the crop, believing that the seed of their own selection had been furnished, and it would be an unjust rule to impose upon them, as a condition upon their right to complain, that they first abandon the contract and give up their crops. The tenants gathered and delivered the crops because the contract required it, but they are entitled to recover the price of the cotton received on the Memphis market because of the fact that the landlord by Ms wrongful act prevented them from getting advantage of the production of the prolific variety of cotton which they had selected. Decree affirmed.

HUMPHREYS, J. A. N. Hilger filed a petition for writ of certiorari in this court to bring up the proceedings of the Cleburne Circuit Court in the case of The J. R. Watkins Medical Company, Plaintiff v. E. L. Gentry, J. E. Dugger and A. N. Hilger, Defendants, alleging that a judgment was entered against him in said cause in the sum of $909.63, in vacation, without authority of law; that, at the time said judgment was entered, he was absent from the United States, in the United States’ military service, and that he had a meritorious defense to the action, in that the obligation, upon which judgment was rendered, was changed in a material part after the execution thereof, without his consent. • A writ was ordered directing the circuit clerk of Cleburne County to certify to this court a transcript of the proceedings of the circuit court in said cause. The substance of the proceedings certified by the clerk, in response to the writ, consists: First. Of an order made by the circuit court on March 7, 1919, which was a day of its regular spring, 1919, term, taking the above entitled cause under advisement and giving petitioner, A. N. Hilger, sixty days within which to take and present depositions and a brief to the judge of said court in vacation. Second. The adjournment of the court on March 7, 1919, until court in course; and, Third. An entry on May 16, 1919, in vacation, of a judgment in favor of the J. R. Watkins Medical Company against A. N. Hilger, for $909.63, with six per cent, interest thereon from March 1,1917, until payment of the judgment, with direction by the judge that the judgment be entered as of date March 7, 1919. The judgment recited that the cause was submitted upon the pleadings and depositions of the plaintiff with permission to A. N. Hilger to take and present depositions and brief in vacation to the judge within sixty days, who should then render judgment as of date March 7,1919; and that the said A. N. Hilger failed to present the depositions and brief within the allotted time. The petitioner insists that the judgment is a nullity, because rendered in vacation. A circuit judge is without authority to render a judgment in ordinary proceedings in vacation. Biffle v. Jackson, 71 Ark. 226; Boynton v. Ashabranner, 75 Ark. 415; Poole v. Oliver, 89 Ark. 85; Mell v. State, 133 Ark. 197; State ex rel. Hall et al. v. Canal Construction Co., 134 Ark. 447; Diffie v. Anderson, 137 Ark. 151. The respondent, The J. R. Watkins Medical Company, insists, however, that the judgment was actually rendered on the 7th day of March, 1919, at the regular spring term of the Cleburne Circuit Court. This contention cannot avail in a proceeding on certiorari to this court. It could only avail respondent in a proceeding to correct the judgment by nunc pro tunc order in the circuit court at regular term time, which remedy is not affected or precluded by this proceeding. On certiorari, this court can only look to the face of the record. The record shows that the judgment was rendered in vacation. It is also insisted by respondent that certiorari is not the proper remedy in this case. It is true that the writ of certiorari cannot be used as a substitute for an appeal, nor to correct mere errors in the exercise of the jurisdiction of inferior courts; and also true that it is a discretionary writ, but the Supreme Court, in its super intending control over inferior courts, will issue writs of certiorari to quash judgments rendered by circuit judges or chancellors without authority, in vacation. Ex parte Helmert, 103 Ark. 571; Bowden v. Webb, 116 Ark. 310. It appearing from the face of the judgment herein that it was rendered in vacation and therefore void, it will be quashed.

HUMPHREYS, J. This suit was instituted in the Oscelola District of the Mississippi Circuit Court by appellant against appellee, to recover a balance due for the year 1918 on a rental contract made between the parties on November 27, 1917, for a plantation of 400 acres in said county. Appellee denied liability on the ground that the contract was void for want of consideration. The cause was submitted to a jury on the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment entered in favor of appellee. From the judgment an appeal has been duly prosecuted to this court. The parties first entered into a written contract of rental for the plantation on December 3, 1915, covering the years 1916, for $5.50 per acre; 1917, for $6 per acre; and 1918, for $6 per acre if middling cotton was worth less than 10 cents per pound at Memphis on November 15, 1918, and $6.25 per acre if worth more than 10 cents per pound at said time and place. Appellant did not own the land at the time the contract was made. Appellant testified that he informed appellee, when the contract was made, that he held the lands under lease from non-resident owners. Appellee testified that he signed the contract believing that appellant was the owner of the plantation, and did not ascertain to the contrary until January, 1916, after he had taken possession and placed his tenants, teams and machinery on it. One provision of the contract was as follows: “In event of sale of land herein described, this lease is to terminate and become null and void at the end of the year in which such sale shall have been made. ’ ’ Appellant purchased the land ojn September 17, 1917, from the owners. On October 4th thereafter, he wrote appellee as follows: “I beg to advise that I have finally and fully closed trade with the former owners of the property which you are now farming, and under the terms of your contract, same is void and terminates at the end of 1917. If I do not determine at an early date to farm the property myself personally, will be pleased to discuss with you a new contract for 1918. In line with my usual policy, I always try to trade first with parties on the property.” Appellee received the letter and consulted an attorney concerning his rights under the contract. Appellee testified that he then called upon' appellant and insisted that he had a right to hold the plantation under the contract for the year 1918; that appellant said his purchase of the land terminated the lease on December 31, 1917, and that he must surrender the premises at that time or sign a new contract agreeing to pay $5,000 for the use of the plantation for the year 1918; that 75 acres of his cotton was still in the field, and, on that account, signed, under protest, the contract upon which this suit is founded, asserting at the time that he intended to test his rights under the first contract. In keeping with appellee’s position, he declined to pay the additional rent of $2,472 provided for in the second contract at the time it became due, paying only so much as he regarded due under the terms of the first contract. Appellant asked for a peremptory instruction on the theory that the second contract was valid and a substitution for the first. The court refused to so instruct, and sent the case to the jury upon the theory that appellant’s right to recover depended on whether or not appellee knew that Simonson did not own the land when he entered into the first contract. The instruction given by the court under the latter theory, over the specific objection of.appellant, was as follows: “There are two contracts in .evidence hiere, one dated December 3, 1915, and one dated November 27, 1917. You are instructed that, if at the time plaintiff and defendant entered into contract dated December 3, 1915, plaintiff advised the defendant that he was acting for the owners of the land and not for himself, or if that fact was otherwise known to the defendant at the time, then you will find for the plaintiff on the issue of rent, for the amount here sued for, with interest thereon from November 15, 1918, to this time at the rate of 6 per cent. “On the other hand, you are instructed that if you find, from a preponderance of the evidence, that at the time plaintiff and defendant entered into the contract dated December 3, 1915, plaintiff failed to disclose to the defendant the parties for whom he was acting, in so making said contract, and that defendant did not know that plaintiff was acting for others and believed that he was acting for himself in so making said contract, your verdict should be for the defendant on the issue of rent sued for.” The main insistence of appellee is that the contract of date November 27,1917, required appellant to do that which he was bound to do under the contract of December 3, 1915, and therefore void for the want of consideration. Appellant’s insistence is that the contract of date November 27, 1917, was a settlement or compromise of a dispute concerning the effect, under the sales clause in the first contract, of the purchase of the lands by appellant from the owners, and that the settlement or compromise of the dispute was a sufficient consideration to support the latter contract. Appellant’s construction of the first contract was that the purchase of the lands terminated the lease on December 31, 1917, at which time he was entitled to the possession. They disputed concerning their respective rights. Appellant demanded a new contract specifying a rental of $5,000 for 1918, else the possession of his lands on December 31, 1917. Bather than move, or defend his possession under the terms of the first contract, he yielded to the demand of appellant by signing, under protest, the contract constituting the basis of this suit. The reasons assigned by appellee for signing the contract are that he had secured no other place and had not gathered his cotton, so it cannot be said he signed the new contract under duress, or that appellant’s interpretation of his first contract was made in bad faith. Even if it be conceded that appellant’s claim was without merit, the execution thereof was a settlement or compromise of a dispute between the parties, which compromise within itself was a sufficient consideration to support the rental contract or lease of date November 27, 1917. The contract of that date was substituted for the first and was a valid, binding obligation upon both appellee and appellant. It was said by Mr. Chief Justice Htll, in the case of Satchfield v. Laconia Levee District, 74 Ark. 270, that— “The voluntary adjustment of a matter in dispute or litigation, even when protesting against it, effectually terminates the question of litigation.” This court is committed to the doctrine that a voluntary settlement or compromise of claims between par-tries, with or without merit, if asserted in good faith, is sufficient consideration to support a new agreement or contract. Gardner v. Ward, 99 Ark. 588; Cherokee Const. Co. v. Prairie Creek Coal Mining Co., 102 Ark. 428; Kress v. Moscowitz, 105 Ark. 638. Other issues were presented by the pleadings and evidence and have been argued in the respective briefs of learned counsel, but, under our conclusion as to the vital issue in the case, it is unnecessary to incorporate in the opinion a statement of the pleadings or evidence upon which the collateral issues depended. Likewise, our determination of the vital issue renders a discussion of the collateral issues unnecessary. In our view of the law, under appellee’s own evidénce and the undisputed fact that he owed $2,472 on November 15, 1917, the balance due on the last rental contract for 1918, the trial court should have instructed-a verdict for appellant in that amount, with interest at the rate of • 6 per cent, per annum from November 15, 1918, to the date of the rendition of the judgment. For the error indicated, the judgment is therefore reversed and judgment is directed here for said sum, with interest at the rate of 6 per cent, per annum from said date until .paid.

HART, J., (after stating the facts). It is first insisted by counsel for the defendants that the court erred in certain respects in its ruling on the pleadings. But little need be said in regard to this phase of the case. Chancery cases are tried de novo on appeal. The amended complaint is too long to set out at length in this opinion. We have carefully considered its provisions, however, and have reached the conclusion that the allegations are broad enough to warrant the relief granted by the chancellor provided they are established by a preponderance of the evidence. The principal issue in the case is whether or not the proof shows that the real transaction was between Ley and A. W. Sanders and that the conveyance of the property to Mabel Sanders was colorable merely for the purpose of defrauding the plaintiff, Berry, out of his commissions in the sale of the property. The law requires good faith in every business transaction and does not allow one party to intentionally deceive another by making false representations or by concealments. Fraudulent schemes are usually planned in secret and executed in the dark. For this reason it is oftentimes a matter of great difficulty to determine what one’s motive may have been for this or that particular action. What you do and not what you say is often .the key to open the door of your mind. Therefore, upon the issue of fraud, such as here raised, the plaintiffs should be permitted to thoroughly sift the transaction and to explore the entire field and to show any conduct and circumstances from which an inference of fraud may be legally inferred. It has been said that falsehoods are the ghosts of truth; the masks of faces. Another philosopher has said that a lie always needs a truth for a handle to it. The truth of these maxims is well illustrated in the case at bar. It is not to be doubted that Mabel A. Sanders had the right to purchase the property in question for her own use and benefit, and that if she did so, the property should not be burdened with a lien for Berry’s commission. The bald testimony of Mabel A. Sanders tends to show that she purchased the property in good faith for an investment; but when her testimony is read and considered from its four corners, the court thinks it is contradictory and inconsistent with itself, and when viewed in the light of the attendant circumstances warranted the chancellor in finding that the sale to her was colorable merely and that the real sale was to her brother, A. W. Sanders, the title being put in her name for the purpose of defrauding Berry out of his commission in making the sale. Mabel A. Sanders lived in Los Angeles, California, and was on a visit to her brother in St. Louis, Missouri, ■when her connection with the transaction commenced. She had never heard of the Nakomis mine and did not know any of the parties connected therewith except her brother. She first said that her brother told her about a company in which he was the principal stockholder, leasing the land for one year and taking an option for the sale of it for the same time for the sum of $20,000. She stated that he told her that it would be a good way for her to make money quickly because his company would likely exercise its option during the year and that in that event she would receive $20,000 for the property less $2,000 commission, which would go to Berry. It is perfectly evident from her acts and conduct that she did not expect the lessee to exercise its option during the year. The lessee surrendered possession of the property to her soon after she purchased it and the same manager continued to operate the mine. The taxes were due just after she purchased the mine and the same manager attended to the payment of them for her. She made no effort to get the lessee to exercise its option to purchase at $20,000 or even for a reduced price. She acquiesced in it giving up its lease when by its terms it ran for a year. The lease was a profitable one to her and she could have compelled the lessee to have carried out the lease and operated it for the balance of its term. She knew her brother was the principal stockholder in the lessee corporation and was managing it and yet permitted it to surrender possession without an effort to induce it to exercise its option to purchase the property. If she had been induced by her brother to purchase the land upon the faith that his corporation would exercise its option to purchase during the term of its lease, it is perfectly natural that she would have made some effort to induce him to carry out his promise. It is equally unreasonable to say that she bought it for an investment. She said that both her brother and Ley told her that it was a fine investment and that she thought there would be a good profit in the investment. At the same time she admits that she had been informed that the engineer on the property was wasting a large amount of money on it. She said that she acted independently in purchasing the property and made the deal directly with Mr. Ley at her attorney’s office. Her attorney was a stranger to her and was an attorney who some times transacted private business for her brother. She did not visit the mine either before or after its possession was surrendered to her by the lessee. She knew that a good deal of money had been wasted in operating it, and yet continued its operation under the same management. She returned to her home in California without ever going to see the mine. She says that she paid Ley the purchase price in cash. He was a stranger to her and this was a suspicious circumstance in itself. Ley immediately went to a distant part of the country and has not since returned to Arkansas. Berry was informed that there was a scheme on foot to cheat him out of his commission and immediately wrote to that effect to all the interested parties. Such a letter was written to the attorney of Mabel Sanders on the 29th day of December, 1915, and was duly received by him. He did not answer the letter until January 12, 1916, and asked for a delay until he could investigate the matter thoroughly. This was inconsistent with the statement of Mabel A. Sanders that she made the purchase direct from Mr. Ley without the help of her brother. If such had been the case it would have been easy for her attorney to have so replied at once. There would have been nothing to investigate. Mabel A. Sanders admits that her attorney sent her brother down to Yellville to examine the lease and option contract and papers deposited therewith for the purpose of seeing that the copies of them were true ones. As we have just seen, the circumstances all point to the fact that the lessee corporation did not intend to exercise this option and on that account it could make no difference to her about what the terms of that instrument might be. If the transaction with Ley was in good faith, she would acquire the title to the property. It is evident that an examination of these papers was made for the purpose of knowing exactly what the obligation of the parties to Berry might be. If Mabel A. Sanders was to receive in good faith the title of Ley to the property, it could make no difference to her what the papers placed in escrow in the Bank of Yellville contained, for even if the lessee corporation exercised its option to purchase she would only have to pay $2,000 commission to Berry and she knew that everything in excess of the price she was to pay for the property and the amount of Berry’s commission would be profit to her. It would make a difference to her brother, however, to know the exact terms of the option so that he would know definitely whether he could purchase the property in his own name and escape the payment of commissions to Berry. A. W. Sanders could not have purchased the property in his own name without violating the conditions upon which the lessee corporation was organized. Ley, Sanders arid Reiter all went down to examine the papers together. While there, Ley told the president of the bank, who was the brother-in-law of Berry, that the property was about to be sold and that Berry would get his commission right away. At the time Reiter came down to record the deed from Ley to Mabel A. Sanders, he told Berry that the deal was made with Mabel Sanders for the purpose of protecting her brother, A. W. Sanders, in the money that he had expended on the mine under' the management of Hamilton and G-oldman. He said that A. W. Sanders had been out something like $5,000 in this way. The deed to Mabel Sanders was executed on December 8, 1915, and this case was tried in the spring of 1919. During all this time, so far as the record discloses, Mabel Sanders did not visit the mine, or try to sell it, although she says she bought it for resale for a quick return on her money. She made no complaint to her brother that the option of his company to purchase was not exercised. Reiter was the trusted agent of her brother. Neither of them testified in the case. It is true the burden of proof was upon Berry to show concerted action and collusion on the part of the defendants; but the court is of the opinion that this has been done, and that the record, when read and considered from its four corners and viewed in the light of the attendant circumstances, shows that Mabel Sanders was a mere figurehead, and that the real transaction was with A. W. Sanders, the principal stockholder of the lessee corporation and the manager and director of its affairs and policies. But it is claimed that the statements of Ley to Layton in the presence of Reiter and Sanders and the statement of Reiter to Berry when he came down to file the deed from Ley to Mabel Sanders for record are not admissible. Of course, concert and collusion on the part of A. W. Sanders, Mabel Sanders and Reiter to cheat Berry out of his commission must be established before their declarations made in the absence of Mabel Sanders would be binding upon her. When the connection of individuals to accomplish a fraud is shown, every act and declaration of each member of the conspiracy, in pursuance of the original concerted plan and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is, therefore, original evidence against each of them. Care must be taken that the acts and declarations thus admitted, be only those which-were made and done during the pendency of the fraudulent enterprise, and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they are to be rejected. Clinton v. Estes, 20 Ark. 216, and Jones’ Commentaries on Evidence, vol. 2, sec. 254 (255). We think the charge of collusion between these parties to cheat Berry out of his commission is established by the facts and circumstances introduced in evidence, when considered in connection with their acts and conduct. The transaction was not regarded ended until Reiter had filed the deed for record. He and A. W. Sanders were active participants during the whole course of the transaction. Reiter was manager of the mine and the confidential agent of A. W. Sanders while his company was operating the mine. He went with A. W. Sanders to examine the escrow papers in the Bank of Yellville. He advised with the parties about the condition of the mine, He carried the deed from Ley to Mabel Sanders and filed it for record. He at once commenced to pay the taxes for her. The associates of A. W. Sanders became angry and charged him with bad faith when they found out about the conveyance to Mabel Sanders. This indicates a belief on their part that A. W. Sanders, the principal stockholder of the lessee corporation, was on a deal for the property under cover, and in violation of their rights, and did not intend that the lessee corporation should exercise its option to purchase the mine. Reiter continued right along in charge of the mine. Hence the court thinks that the declarations were made in the prosecution of the common object and before the termination of the unlawful enterprise. Therefore, so far as concerns the transaction for which the combination was formed, the parties were identified in interest and motive and what one said in the conduct of the matter may be used as evidence against the others. It follows that the decree will be affirmed. HUMPHREYS, J., not participating.