and after the location of the state capitol on the land there conveyed, Gov. Pope, in a public letter in regard to the location of the state capitol, mentioned the fact that the prop ogram, had a street upon each of its four sides, which would insure against encroachments upon the state's property. Besides, as has been stated, Russell and the other original proprietors of Little Rock had dedicated Water street to the town of Little Rock 12 years before Russell, by quitclaim deed, conveyed Water street to the state. of the "covenant" pursuant to the terms of which the plat itself was filed, and that under this covenant Beebe was "bound to relinquish his fee in the land occupied by the streets as laid off and indicated in the ded- | erty acquired, which in shape was a parallelication of the original proprietors." As has been said, this plat of the original proprietors showed Water street as extending to the water's edge, and the city, therefore, took the title to that point. By water's edge, as here used, we mean, of course, the ordinary highwater mark, as the state has title to the navigable waters and to the soil beneath by virtue of its sovereignty. Donnelly v. United States, 228 U. S. 243, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, p. 710. The patent to Beebe, aside from any conditions imported into it by virtue of his covenant would be construed as conveying only the land extending to the ordinary high-water mark, as the federal government, by its patent, did not, of course, undertake to convey land belonging to the state by virtue of its sovereignty. It is argued on behalf of the state that Jeuryens' land is a purpresture. Counsel quotes Coke's definition of that word as follows: "'Purpresture' cometh of the French word 'pourprise,' which signifieth a close, or inclosure; that is, where one encroacheth or maketh several to himself that which ought to be common to many." Co. Litt. 277b. At some indefinite, unfixed date, the state did encroach upon Water street and certain connecting alleys; but this possession was not referable to the Russell deed. This is shown by the fact that in 1885 or 1886 certain officers of the state caused a fence to be erected on the north or river side of its grounds, inclosing the largest area which the state had at any time claimed. This fence was 10 or 12 feet south even of the railroad which ran along the edge of the embankment. The state claimed no land north of its inclosure, as is shown by the testimony of a distinguished citizen who had served the state as Attorney General from 1886 to 1889 and as Governor from 1897 to 1901. This officer testified that, while he was Attorney General, he had been advised that the city claimed the land between the capitol The land would be the property of the grounds and the river, and that he was requested to bring a suit to settle the title of state as a purpresture if it were built be the state to the land inclosed which the city tween the high and low water mark on the claimed. That he investigated the matter side of a navigable river, because the state and declined to bring the suit, because the holds in trust for all its citizens that soil ly-state was in the undisturbed possession of ing between the high and low water mark, and one cannot enter on such soil and make several to himself that which ought to be in common to many. We will later discuss the question whether the ground upon which Jeuryens settled was above the ordinary high-water mark, the importance of which fact is at once apparent. The state also claims title under the deed We all the land which it claimed. This fence from William Russell, the original proprietor of the town of Little Rock, to Gov. Russell, made in 1833. This deed conveyed the lots that are now a part of the old state [1, 2] It follows, from what we have said, house square, and quitclaimed, "with no that the city owned the disputed land upon guaranty or assurance of title whatever," the which Jeuryens located, unless it was below land between the square and the river. This the high-water mark. If it were below the deed was executed 12 years after the origi-high-water mark, it was a part of the bed nal proprietors had filed their plat of the of the river and belonged to the state. The town, and at that time Russell had no interest whatever in Water street, as it had been previously dedicated to the town. It is argued that this deed constituted at least color of title and that the state has had actual possession of a portion thereof, which carried the constructive possession to the remainder thereof, whereby the state acquired title. The state's possession of any part of Water street, or of the alleys connecting therewith, is not referable to the Russell case of Railway v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, defines the difference between the bed and the banks of a river. It was there said: er. "In Howard v. Ingersoll, 13 How. (U. S.) 381 [14 L. Ed. 189], Mr. Justice Curtis gave a satisfactory definition of the bank and bed of a rivHe says: "The banks of a river are those elevations of land which confine the waters when they rise out of the bed; and the bed is that soil so usually covered by water as to be of the soil, or vegetation, or both, produced by distinguishable from the bank by the character struction or encroachment may have existed, or been continued, shall be permitted as a bar or defense against any proceeding or action to remove or abate the same, or to punish for its continuance, after an order has been made by the city council or the police court for its removal or abatement." ter. But neither the line of ordinary high-water | limitation or lapse of time that any such obmark, nor of ordinary low-water mark, nor of a middle stage of water, can be assumed as the line dividing the bed from the banks. This line is to be found by examining the bed and banks, and ascertaining where the presence and action of a water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Whether this line between the bed and the banks will be found above or below, or at a middle stage of water, must depend upon the character of the stream. * But in all cases the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules, but as other natural objects are sought for and found, by the distinctive appearances they present; the banks being fast land, on which vegetation, appropriate to such land in the particular locality, grows wherever the bank is not too steep to permit such growth, and the bed being soil of a different character and having no vegetation, or only such as exists when commonly submerged by water.' Under this test we think the land upon | which Jeuryens settled was not a part of the bed of the river. The trees and other vegetation which Jeuryens testified were then growing there prove this. Such vegetation would not have grown on soil which was covered with water for any considerable portion of the year. It is true the annual overflows covered the land; but they were not of sufficient duration to destroy the trees and other vegetation or to prevent their growth. We, therefore, hold that the land was an extension of Water street and belonged to the city as such. The statute was enacted after this court had held, in the case of Ft. Smith v. McKibbin, 41 Ark. 45, 48 Am. Rep. 19, that the cause of action in favor of a city, to recover the possession of its streets, might be barred by the seven-year statute of limitation. The following case is to the same effect: Helena v. Hornor, 58 Ark. 151, 156, 23 S. W. 966. It is conceded by learned counsel for Jeuryens that the plea of the statute of limitations is not available against the city since the enactment of the statute quoted; but it is urged that the plea of laches is available, and should be sustained to prevent the grant of the relief prayed by the city. We think counsel give the statute quoted a meaning too restricted. It does more than to exempt cities of the first class from the operation of the statute of limitations. The section does provide that no statute of limitation shall bar the right of the city to recover the possession of its streets; but it also provides that no lapse of time shall be permitted as a bar or defense to an action to punish, prevent, or remove from the streets or public grounds of the city any buildings, fences, or structures of any kind, posts, trees, or any other matter or thing whatsoever. The Legislature evidently contemplated that the erection or construction of the obstructions mentioned would require time, and would also be matters of general knowledge, and 'it provided, not only that the statute of limitations could not be pleaded against an action to remove these obstructions, but that no lapse of time should bar a suit brought for that purpose. We conclude, therefore, that the statute, not only denies to the person who obstructs the streets the benefit of the plea of the statute of limitations, but also the benefit of the plea of laches as well. [3] It is earnestly insisted that, if the ground belonged to the city, the city's right to maintain this suit is barred by laches. It is argued that the land is within plain view of the city hall, that Jeuryens went upon the land in 1893, when it had no usable or rental value, and that the value which it now has results from the labor which he expended in filling in and leveling up the land. It is pointed out that he made the improvements with the knowledge of the city author ities, and that the mayor of the city had in- | formed him that the city had no interest in the property which he proposed to improve. Possession under these circumstances for a [4] It is shown that Jeuryens has erected sufficient length of time prior to the act of structures upon this property. These he March 21, 1885, would have given title; but may remove if he desires, and reasonable that result cannot be accomplished since the time will be given him for that purpose, enactment of the statute referred to, which is provided he does no damage to the freehold now section 5648 of Kirby's Digest. Certain in removing them. He is accorded this enlarged powers were there given to cities of right because of the provisions of the statthe first class, and, among other things, itute which gives the city the right to eject was provided as follows: "Sec. 5648. In order to better provide for the public welfare, safety, comfort and convenience of their inhabitants, the following enlarged and additional powers are hereby conferred upon cities of the first class, viz.: * * "Third. To punish, prevent or remove encroachments, or obstructions upon any of the streets, sidewalks, wharves or other public grounds of such city, by buildings, fences, or structures of any kind, posts, trees, or any other matter or thing whatsoever, and no statute of en him from the premises. This statute provides, as shown from the portion quoted in a preceding part of this opinion, "that the city may punish, prevent, or remove croachments or obstructions upon any of its streets or other public grounds, and that no statute of limitations or lapse of time shall operate as a bar or defense against any proceeding or action to remove the same or to punish for its continuance." Jeuryens will therefore, if he so desires, be given the right to do voluntarily what the city would have the right to do under the statute quoted. 15, 6] It is earnestly insisted by learned counsel for Jeuryens that he should be allowed to recover the added value of the property which his labor gave it. But we think he has no such right. He used his improvements as he made them, and during the many years of his occupancy his possession always has been merely permissive. He made these improvements for his own use, and he must be held to have done so at his own cost. To impose upon the city the burden of paying for these improvements would disregard the terms of the statute that empowers the city to remove them. The betterment statute (Kirby's Digest, §§ 2754, 2755) does not apply to public agencies. Martin v. Roesch, 57 Ark. 474, 21 S. W. 881. [7, 8] The only rental value which the property has is attributable to the improvements made by the occupant, and it would not be in accordance with the principles of equity to require an occupant, in the absence of a statute on that subject, to pay rent on improvements made by him in good faith. State v. Baxter, 50 Ark. 447, 8 S. W. 188. If it can be shown that the property, minus the structures, which the occupant is given the right, under this decision, to remove, has a rental value, then he ought to pay, and must pay, for that value since the commencement of this suit. In that way his and the city's equities are preserved. the bullets; the size of the bullets being undisputed. 4. CRIMINAL LAW 363 - EVIDENCE - RES GESTE. one who was not present at a killing, but was It was competent as part of res gesta for in hearing distance, to testify as to what he heard said during the shooting, although he could not identify the speaker. 5. HOMICIDE 156(2)-EVIDENCE-INTENT. Where defendant killed a mechanic who was in bed with a girl, and set up self-defense, it was proper to permit testimony that defendant declared eight hours before the killing that he was going to kill a mechanic if he stayed with such girl, to show intent. ABSENCE OF 6. CRIMINAL LAW 543(2) WITNESS-READING OF FORMER TESTIMONY. Where the sheriff and a witness testified that another witness had gone to Louisiana, and that the latter had received a letter from him, the absence of the witness from the state was sufficiently established to justify reading of his evidence given before the coroner. 7. CRIMINAL LAW 547(4)-TESTIMONY TAKEN ON FORMER HEARING-IDENTIFICATION. Evidence taken on a hearing before a coroner and taken down in shorthand and transcribed need not be identified by the stenographer, but may be identified by some one who was present and can recall the substance of the evidence. 8. CRIMINAL LAW 543(1)-TESTIMONY BEFORE CORONER-ADMISSIBILITY ON TRIAL. Where it was undisputed that defendant shot deceased, and deceased was under arrest and present at a hearing before the coroner, to ascertain whether the killing was lawful, and had an opportunity to cross-examine the witness, evidence taken at such hearing could be read on the trial, where the witnesses were absent from the state. SELF-DE The decree of the court below will be re- 9. HOMICIDE 193 - EVIDENCE versed, and the cause will be remanded, FENSE. with directions to amend the decree, quiet-chamber of a prostitute claimed that deceased Where defendant, who killed a man in the ing the title of the city against both Jeuryens and the state for the property involved in this litigation, and for further hearing upon the rental value of the property, as stated, since the institution of this suit. 2. CRIMINAL LAW MISSIBILITY. 448(3)-EVIDENCE-AD picked up a certain knife in the chamber and attacked him, evidence was competent that the knife was not the property of such woman, but sented it to the officer as the knife the deceased belonged to a witness for defendant, who preused. -CREDIBILITY OF ACCUSED. It is competent to ask defendant in homicide case whether he has ever been convicted of a crime for the purpose of testing his credibility. 11. CRIMINAL LAW 11661⁄2 (12), 1169 (2)— HARMLESS ERROR-EVIDENCE. Where it was undisputed on trial of homicide case that a knife shown in evidence was the same knife that was shown at the coroner's inquest, no prejudice resulted from additional evidence of the fact, or a remark of the court that it had been identified by one of defendant's witnesses. 12. WITNESSES 379(1)-IMPEACHMENT. In homicide case, statements of a witness for defendant before the trial contradictory of her testimony were competent. 13. WITNESSES 270(2) - CROSS-EXAMINATION-IMMATERIAL EVIDENCE. Testimony by one, who went on the scene of a murder after the crime, that one bullet went wild, being 6 feet from the floor of the room, was not incompetent it being merely a description of the situation and not an attempt to show intent of accused in firing the shot. Where witness in homicide case testified that 3. HOMICIDE 171(2)—EVIDENCE-ADMISSI-he lived in a house adjoining the place of the killing, and while in bed heard the shooting and conversation. an objection to a question on crossexamination as to which side of the bed he was. sleeping on was properly sustained as immaterial. BILITY. It was competent for one not present at a murder to testify as to physical condition of room, where bullets had entered a wall, and that the next door neighbor brought him one of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The court need not give requested instructions in a homicide case that are fully covered by other instructions. 21. CRIMINAL LAW 789(2) DOUBT INSTRUCTIONS. REASONABLE An instruction, "By reasonable doubt is meant that the evidence of the defendant's guilt must be clear and convincing and fully satisfy your minds and consciences, but it does not mean a mere imaginary, possible, or a captious doubt," is sufficiently affirmative, and is as much so as a requested instruction that, "A reasonable doubt may arise where there is lack of evidence to satisfy your minds and consciences as to the defendant's alleged guilt." 22. CRIMINAL LAW 1039-READING EVIDENCE TO JURY-NECESSITY FOR REQUEST. Where evidence of a state's witness is read to the jury after the submission of the case at the request of the jury, the defendant cannot complain that evidence of his witnesses on the same point was not read, where it was not requested. 23. HOMICIDE 314 - DEATH SENTENCES FORM-AMBIGUITY-LIFE IMPRISONMENT. Acts 1915, p. 774, providing that the jury shall have the right where punishment is death by law to render a verdict of life imprisonment, is not mandatory, and where the jury simply renders a verdict of murder in the first degree as charged, there is no ambiguity, and the sentence of death is meant. S. D. Campbell and Fred R. Suits, both of Newport, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. HUMPHREYS, J. Appellant, Chess Kelley, was indicted, tried, and convicted of murder in the first degree for killing H. A. Harmon between 1 and 2 o'clock a. m. June 9, 1917, at Elsie Beacham's home in the red light district in Newport, Ark. From the judgment and sentence of death, an appeal has been lodged in this court. The door The substance of the state's evidence leading up to and immediately surrounding the killing was as follows: Appellant went in company with Zeph Mims and Mabel Sherman to the home of Elsie Beacham, with whom he was infatuated; between 1 and 2 o'clock a. m. on June 9, 1917. The house contained three rooms in a row. to the front room was fastened with a button and had a chair against it. The middle door or door to the bedroom was closed. A rocking chair with Elsie Beacham's dress on it was near the bed. A light burning low was on a dresser at the foot of the bed. Harmon's clothes were in a drawer to the dresser, and his knife, keys, etc., were in the pockets. H. A. Harmon, an automobile mechanic, and Elsie Beacham were sleeping toThe front door was gether in the bed. forced open, and Chess Kelley, followed by Zeph Mims and Mabel Sherman, opened the middle door and entered the bedroom. Kelley said to Mims, "hand me the gun; I am going to kill the son of a bitch." Mims handed Kelley the gun. Harmon was sitting on the side of the bed, but got up and they (Kelley and Harmon) went together and were scuffling close to the bed. Harmon was unarmed. Kelley fired five shots. Four shots took effect and one ranged up and went through the wall above Elsie Beacham's head. Four balls entered Harmon's body in front and two of the wounds were powder burned, the other two not. There were three exit wounds. Immediately after the shooting Harmon fell across the bed. Kelley threw the empty shells on the floor, and said he had bought the gun for $22 to kill the son of a bitch, Elsie Beacham and himself. A physician was called who administered to Harmon, but he died at 8 o'clock a. m. from the gunshot wounds. The substance of appellant's evidence leading up to and immediately surrounding the killing was as follows: Appellant had known Elsie Beacham, Mabel Sherman, and Zeph Mims for several weeks. He had been intimate with Elsie Beacham, but was not jealous of her. He returned from Missouri, Appeal from Circuit Court, Jackson Coun- where he had been on a visit, on the evening ty; Dene H. Coleman, Judge. Chess Kelley was convicted of murder in the first degree, and he appeals. Affirmed. before the tragedy occurred. After supper he spent the evening on the streets, in a billiard hall, and at the restaurant. During For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes him the gun. If this testimony were true it would tend to show that Kelley had gone there to kill Harmon. This was positive evidence, and it was either true or not true. The fact that she later pointed out Mims to the night marshal as the man who handed Kelley the gun could not add weight to her positive evidence. It was not a question of identity of Mims, so that pointing him out would tend to corroborate her identification. The question was whether Kelley asked Mims for the gun to kill Harmon, and received it from him for that purpose. If the evidence were incompetent as not being a part of the res gestæ, it was nonprejudicial and, therefore, harmless error to admit it. [2] Over the objection and exception of appellant Dr. O. E. Jones was permitted to testify: "That one of the bullets had gone wild evidently. It was six or seven feet above the floor. Just opposite this house-the houses were five or six feet apart-there was a hole where it had gone through into this other house, and the fellow next door brought me one of these bullets." the evening he had let Lawrence have his, gun to kill Harmon, and that Mims handed pistol, and after getting it back from him to take home he left the restaurant in company with Mims, who had accepted an invitation to spend the night with him. They got to appellant's room about 12 o'clock, but decided to go down and get appellant's laundry from Mabel Sherman before going to bed. They found her sitting up with a sick child, and after talking about an hour went with her to see if Elsie Beacham would rent her a room. Elsie had recently rented the house. Appellant had his pistol in his bosom, but did not know H. A. Harmon was bedding with Elsie, and did not go there to kill him. When they got to Elsie's house, appellant knocked three times on the door, and called, "Elsie," and knocked again, and either Elsie or Harmon said, "Come in; the door is open." Appellant entered with Mims and Mabel Sherman. He knocked at the middle door, pushed it open, and all entered in the middle room. Elsie and Harmon were sitting on the bed. Harmon said, "What does this mean?" Appellant said, "Not a thing, Buddy." Elsie said, "That is that G- -d d- d long slim son of a bitch man I used to have; get up and kill him." Harmon said, "Beat it, or I'll kill you." Harmon grabbed a knife out of the chair and started toward appellant, who jumped away from him, and told him to stop, but he did not. Appellant jumped away from him a second time, shot over his head, and told him to stop. Harmon started at him again, and appellant shot him. The first shot was fired when Harmon was approaching appellant with a knife. Harmon made three stabs at appellant when he caught Harmon's wrist, and Harmon grabbed the gun, and four shots were fired while they were scuffling. They fell on the bed together, and appellant called to Elsie to take the knife, as he did not want to kill Harmon, unless he had to. Elsie refused, and Mabel took the knife out of Harmon's Appellant testified he believed it was necessary to kill Harmon in order to save himself from great bodily harm or death. He denied making any statement as to why he bought the pistol, or concerning his love for Elsie, but said Elsie was crying, and threatened to buy a gun and kill him, Mims, and After turning Harmon over, at his request, he told Elsie and Mabel to get a doctor, and he took his pistol to a woman by the name of Allie, and surrendered to Turbin and Sandmon. hand. herself. Having stated the case in this general way to bring the opinion within reasonable space, we will now announce our conclusions upon the assignments of error insisted upon by appellant for reversal of the judgment. Elsie Beacham testified that one of the balls struck the wall above her head. Appellant testified that he fired the first shot high to try to stop Harmon. It is contended that Jones' statement that one of the bullets went wild indicated that Kelley tried to kill Harmon the first shot, but failed on account of poor marksmanship. Dr. Jones did not see the killing, so it is obvious he was not attempting to show the intent of Kelley in firing the shot, or to say which shot went wild. It was clearly an expression on his part to indicate that one ball ranged higher than the others in an attempt to describe the situation as he found it after arriving at the scene of the tragedy. [3] No special reason why the balance of Dr. Jones' statement was incompetent or prejudicial has been pointed out by able counsel for appellant, and we are unable to discern The evidence disclosed that any. all the bullets fired were 41's in size, and that one bullet passed out through the wall into the adjoining house. It was competent for Dr. Jones to testify to the physical conditions as he found them, and also competent for him to testify that the next door neigh bor brought him one of the bullets. [4] It is insisted the court erred in admitting the testimony of Dave Seligman to the effect that during an interval between the last two shots he heard some man in the room say: "Elsie, I love you better than anybody else in the world; I bought this a short while ago just for this purpose; I intended to kill him, and then kill you, and then kill myself." [1] Elsie Beacham was permitted to testify over the objection of appellant that immediately after the killing she pointed out Appellant was not identified as the author Zeph Mims to the night marshal as the man of the statement, but it was used either by who handed the gun to Kelley. Elsie Beach-him or some one in his presence during the |