Horn Et Ux. v. Gibson , 24 Okla. 481 ( 1909 )

This cause having been tried before the judge of the United States Court for the Western District of the Indian Territory prior to the admission of the state, sitting as a chancellor, the rule then obtaining as to the binding force of the finding of the master or chancellor should apply. In the case ofGoerke v. Rodgers. 75 Ark. 72, 86 S.W. 838, the court said:

"The appellee insists that the finding of the chancellor should not be reversed unless against the decided weight of evidence. There are some early decisions to that effect; but trials in chancery appeals are de novo in this court, and the finding of the chancellor only persuasive, and that has been the rule in this court for many years."

See, also, Chapman v. Liggett, 41 Ark. 292; Gist v. Barrow,42 Ark. 521; Ringgold v. Patterson, 15 Ark. 209; Woodruff v.Core, 23 Ark. 341; Pledger v. Garrison, 42 Ark. 246; Cagle v.Lane, 49 Ark. 465, 5 S.W. 790; Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563; Clark v. Roots, 50 Ark. 185, 6 S.W. 728, 8 S.W. 569; Kelly v. Carter, 55 Ark. 112, 17 S.W. 706; Miller v.Gibbons, 34 Ark. 212; Gaty v. Holcomb, 44 Ark. 216. But see the case of Branch v. Mitchell, 24 Ark. 431, contra. Under the record, however, it is not necessary to consider the rule as to such binding force; but the Arkansas authorities as to the rule obtaining in the Indian Territory should control. Nat. LiveStock Com. Co. et al. v. Taliaferro et al., 20 Okla. 177,93 P. 983. In this case, however, the finding of the master appears to be reasonably supported by the testimony, and, to say the least, it is not reasonably clear that the preponderance of evidence is against such finding. The master heard the witnesses orally, and had an opportunity to weigh their evidence as they testified. This finding was confirmed by the chancellor, and, it being reasonably sustained by the record, we do not feel disposed to disturb the same.

The question further arises as to whether or not, upon the finding of fact, the court should have rendered judgment thereon in favor of the plaintiff. In the case of Stanard v.Sampson et ux., 23 Okla. 13, 99 P. 796, it was held by this court that, where a part of the consideration for an agreement is for the discontinuance of a prosecution for a crime, the agreement or note was void. In that case, however, the jury found that a part of the consideration of the note and mortgage, as executed and agreed upon by all the parties, was for the purpose of having a criminal prosecution discontinued. In this case no such findings are made. In the case of Barteldes Seed Co. v. Border Queen Mill ElevatorCo., 23 Okla. 675, 101 P. 1130, it was held that "he who seeks to have an act or contract declared unlawful assumes the burden, and in order to prevail must sustain the same by proof."

In the case at bar there does not appear to be any doubt but that the plaintiff in error Christopher E. Horn was indebted to the defendant in error, William M. Gibson, in a sum in excess of the amount of said note. It may be that plaintiffs in error executed said note and mortgage with the expectation that it would prevent an indictment being returned against the said Christopher E. Horn, and it probably had that effect, although the grand jury investigated said charge, and the defendant in error and his witnesses appeared before it and gave their evidence. Men in acting as jurors are prone to be merciful and to extend clemency, though not within their legal province, and, when it developed before the grand jury investigation that Horn had satisfied the indebtedness that was secured by the mortgaged property that he was charged with having unlawfully disposed of, it may have influenced that jury not to return an indictment, and after the debt against Horn was arranged satisfactorily, it may be that the defendant in error was not as zealous in the prosecution of the criminal charge as otherwise he would have been; but, unless he agreed, as a part of the consideration of said note, or as an inducement for its execution, that he would use his influence or endeavor to bring about a discontinuance of said criminal prosecution, or cause the same to be dismissed, said note is not invalid. The fact that a citizen may institute a prosecution against a party for disposing of mortgaged property does not, of itself, prevent such citizen from collecting or taking security for the payment of the debt out of which said criminal proceedings grew from such party.

In cases where criminal prosecutions are instituted and contracts made a part of the consideration being for the discontinuance of such prosecutions, the public has an interest in having such contracts stricken down, not only that the individual may not be protected against such coercion, but also that there may be no such embarrassment or impediments against the enforcement of the criminal laws. For that reason the party executing the same may by plea and proof avoid such contract, and the parties to such agreement proceeded against by the commonwealth criminally. In either event the burden is upon the individual or state that assumes the burden to show that such contract was made for the purpose of discontinuing a criminal prosecution or compromising a crime.

No injustice appears to have been done the plaintiffs in error by the decree of the lower court. It appears that the indebtedness from the plaintiff in error Christopher E. Horn to the defendant in error was in excess of the amount of said note, as ascertained by the board of arbitrators, and the master and chancellor have found against the plaintiffs in error on the question as to a part of the consideration being the compromise of a prosecution for a crime. There being testimony reasonably supporting such finding, at any rate a preponderance in favor of the finding, the decree of the lower court will not be disturbed.

The plaintiffs in error attached to their supplemental brief a certified copy of an amendment to the answer of the defendant in a certain case now pending in the district court of Wagoner county, state of Oklahoma, styled "Christopher E. Horn, Plaintiff, v. William M. Gibson, Defendant, No. 1762," with a view of showing an admission by the defendant, Gibson, in that answer contrary to his contention in this case; but this court has jurisdiction of this case in an appellate capacity only, and we know of no statute or authority that would justify us in considering matters dehors the record proper, which includes only such matters as may be brought up by the transcript or case-made. This being contained in neither, and under no circumstances could it have been incorporated in the case-made, we are not permitted to consider this certified copy of said amendment for any purpose in this case, and consequently it cannot have any bearing on this court, for any purpose whatever.

Affirmed.

All the Justices concur.