author: Marian F. Penix, Judge.

text:
    HUNTER WASSON PULPWOOD, Employer TRI-STATE INSURANCE COMPANY, Insurance Carrier v. Arnold BANKS, Employee
    CA 80-185
    605 S.W. 2d 753
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980
    Rehearing denied October 27, 1980

      Gene Matthews, Jr., for appellants.

      W. H. “Dub” Arnold, for appellee.
   Marian F. Penix, Judge.

The Claimant was found to be totally and permanently disabled from an injury sustained while employed as a pulpwood producer. His employer, Hunter Wesson Pulpwood and its carrier have appealed.

On March 20, 1978, the Claimant was struck on the head by a tree. Dr. Wilber Giles, neurosurgeon, performed a cervical fusion and gave the Claimant an anatomical disability rating of 20 percent to the body as a whole. The Appellants contend the Claimant is able to resume employment and have controverted any disability beyond 25 percent which they have accepted.

The medical testimony is as follows. Dr. Luck, a general practitioner, believes the Claimant is totally disabled because he is not qualified to perform work other than that of a physical laborer. Dr. Luck believes the Claimant cannot do the work of a physical laborer. Dr. Giles, neuro-surgeon, agrees with Dr. Luck about the anatomical disability of 20 percent to the body as a whole, but does believe the Claimant is able to perform numerous jobs and should return to work. Dr. McConkie, an orthopedic surgeon obtained by the Appellants, believes the Claimant is capable of returning to his regular work and also believes there is other work he can do. A mechanic testified to the Claimant’s excellent reputation as an automobile mechanic but believed the Claimant was no longer able to perform such occupation. A pulpwood hauler testified as to the Claimant’s good reputation as a worker but gave an opinion the work was extremely strenuous. In light of the foregoing testimony the Claimant was found to be totally and permanently disabled under the rationale of Glass v. Edens.

The Appellants moved for an Order directing the Claimant to undergo an evaluation through the Rehabilitation Service at Hot Springs. Their motion was denied. The record reflects the Claimant agreed to undertake an evaluation through Arkansas Rehabilitation Services. This was agreed to at a hearing before the Administrative Judge. The reports of the Rehabilitation counselor reveal that the Claimant declined to make an application for an evaluation.

Mr. Banks indicated that because of his head, neck condition, problems with his hands and grip and because he is not able to stand or sit for any length of time, that he is not able to participate in any kind of training program at this time . . . Mr. Banks did not make an application to the Rehabilitation Services because he felt that his medical condition would be too limiting.

The Appellants argue it was error for the Commission to fail to require the Claimant to submit to an evaluation by Arkansas Rehabilitation Services to determine what other employment the Claimant was able to do. They argue the Commission erred in finding total disability without the benefit of the Rehabilitation evaluation evidence. The Appellants acknowledge that Section 81-1310(f) of the Workers’ Compensation Statute provides:

. . . The employee shall not be required to enter any program of vocational rehabilitation against his consent

They do, however, contend they are entitled to have the Claimant evaluated to determine what “other employment” the Claimant might be capable of doing. The Appellants argue that Ark. Stat. § 22-110 empowers all courts and administrative tribunals to issue writs and processes reasonably necessary to achieve justice in the cases before them. The appellants contend it was reasonably necessary for the Commission to have ordered the evaluation and without it there is not substantial evidence to support the finding of total disability. The Claimant is 57 years old with an 8th grade education. The record reflects he was skilled and conscientious in the work he did as an automobile mechanic and as a pulpwood hauler. The Appellants argue that from the record emerges a man with a 20 percent anatomical rating who has demonstrated his ability to learn new skills and a capacity to perform as a dependable worker in gainful employment. The Appellants cite Revere Copper & Brass v. Birdsong, 267 Ark. 922, 593 S.W. 2d 54 (Ark. App. 1979):

The question of permanent total diability is an issue of fact and all relevant evidence bearing upon the issue should be considered.

As in all compensation cases of this kind we must determine whether there is substantial evidence to support the finding of the Commission the Claimant is totally disabled. Was it possible for the Commission to make the finding without benefit of the rehabilitation evaluation? Was there substantial evidence to support findings that the Claimant could not qualify for any kind of employment other than that of stenuous physical labor?

The Claimant contends he did meet with the Hot Springs Rehabiltation counselor, Tommy Henson, as was agreed to at the hearing before the administrative judge. However, the Claimant contends the lack of strength in his hands, the severe pain in his neck and chest and the fact he could not sit or stand for any length of time precluded his participation in any evaluation or rehabilitation.

Dr. H. D. Luck has testified the Claimant is totally and permanently disabled. One doctor’s testimony can be substantial evidence. If this testimony is conflicting with the testimony of Dr. McConkie, it is the function of the Commission to weigh the evidence and from such consideration make its findings. In Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2 868 (1977) the Court said:

Weighing the evidence fell within the province of the Commission. In doing so, it must necessarily weigh medical evidence as it does any other evidence. When medical testimony is conflicting, the resolution of the conflict is a question of fact for the Commission . . . When the Commission chooses to accept the testimony of one physician in such cases, the courts are powerless to reverse the Commission’s conclusion in this regard.

Besides Dr. Luck’s medical evidence the Commission considered the Claimant’s age, his education, his lack of special training, and his past work experience. From the testimony we find the Claimant has always worked at jobs which required a great deal of physical effort and every physical motion and strain to which one could subject himself. The Claimant talked of his constant pain and discomfort in his shoulders, arms and back. The witness Mr. Steele, who is an auto mechanic, gave his opinion the Claimant could not do the work required of a mechanic. The Appellants did not object to Mr. Steele’s testimony. Mr. Petty, a fellow employee pulpwood cutter and hauler, testified as to the extremely hard physical labor required in such employment. He testified to the Claimant’s reputation as a hard worker and his honesty and truthfulness. In addition he testified the Claimant is obviously in pain when moving, getting up and sitting down. The Claimant’s wife testified she had not seen him without pain since the date of his injury.

The full Commission found the Claimant is unable to return to gainful employment. Upon reviewing the record along with the findings of the Commission, we find substantial evidence to support those findings.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Janice McVEY v. Charles L. DANIELS, Director of Labor and COLLEGE OF THE OZARKS
    E 80-70
    605 S.W. 2d 483
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellee.
   Marian F. Penix, Judge.

The Claimant was employed by the College of the Ozarks where she had worked eight years on one year contracts. Her last contract began with September, 1979. The contract provided for twelve equal monthly payments of her yearly salary. When she terminated her contract in January 1980 she agreed the employer would pay her the balance in one lump sum. The agency ruled she would be considered employed until August 31, 1980, the expiration of the contract. This ruling was because of the matter of payments and also the nature of her contract. The Claimant contends she is not employed and that the lump sum payment was merely in the nature of a dismissal payment. The Agency ruled the Claimant cannot be considered unemployed under Section 4(c) of the Arkansas Employment Security Law.

The testimony revealed the Claimant was- offered a transfer from the director of admission to a similar position in the Study Skills Center. The Claimant declined the transfer because she contended she was not qualified for the Study Skills Center job. The Claimant was offered three options: 1. transfer to the Study Skills Center, 2. lump sum payment of the remainder of her yearly salary under her contract, and 3. monthly payments of the remainder of her salary until August 31, 1980.

The Claimant testified she chose not to take the job for which she considered herself not qualified and opted to accept the balance of her contract in a lump sum. She testified the College was legally required to pay her the lump sum because they could not show due cause for terminating her contract. She testified she signed an agreement under duress which stated:

By accepting the pay-off of your contract, the College of the Ozarks, as well as its agents and employees, would be released from all liability as a result of the termination of your employment. The consideration for the release of liability, of course, would be the payment to you of the balance of your contract.

President John Burhorn testified he considered the Claimant qualified to do the job to which the College wanted to transfer her. The Claimant had testified she considered herself not qualified.

The Claimant contends the money received cannot be considered wages because she performed no services nor is performing any services for the money. The College contends the lump sum represents wages she would be receiving until August 31, 1980.

The Claimant received a letter from President Burhorn in which he told her to vacate her office no later than 5:00 p.m. Friday January 11.

Upon appeal to the Arkansas Board of Review the Claimant was held to be ineligible for unemployment benefits under the provision of Section 4(c).

Section 4(c) requires:

Such worker is unemployed, physically and mentally able to perform suitable work, and is available for such work . . .
Section 2(m) defines Week of Unemployment as follows:
(m)(l) An individual shall be deemed “unemployed” with respect to any week during which:
(A) he performs no services, and
(B) no wages are payable to him with respect to that week, . . .

When this definition is inserted into the requirement of 4(c), we find the claimant is not unemployed. She has received wages which were payable to her for the weeks in question. She chose to receive the weekly or monthly wages in one lump sum. This does not negate the fact that this pay was for services which would have been performed had the contract been fulfilled.

A similar decision is Gollender v. Morgan, Administrator, Employment Division, 17 Or. App. 104, 520 P. 2d 453 (1974). Gollender, a college professor, was employed by Pacific University pursuant to a twelve month contract. This contract wsa not renewed. Gollender sued for unemployment benefits at the cessation of his teaching duties in May even though he was being paid pursuant to his contract until August 31. Benefits were denied. On affirming the Employment Division’s denial of benefits, the Oregon Court of Appeals stated the test for unemployment under the Oregon Statute turned on when remuneration ended. See also, Hanna v. Employment Division, et al, Or. App., 550 P. 2d 758 (1976).

Finding the Board of Review correctly found the claimant to be disqualified under 4(c) of the Act, we affirm.

Affirmed.


author: George Howard, Jr., Judge.

text:
    Morris TEAGUE and Jo Ann TEAGUE v. Charles RAINES
    CA 80-159
    605 S.W. 2d 485
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Murphy & Carlisle, by; John Wm. Murphy, for appellants.

      Morril Harriman, for appellee.
   George Howard, Jr., Judge.

This is an appeal from a decree dismissing appellants’ petition seeking injunctive relief requiring appellee to remove a gate and other obstruction — rocks and debris — . from a roadway that crosses property owned by appellee which, purportedly, affords appellants access to land owned by appellants.

The requested relief was predicated on the grounds that;

1. The general public, including appellants, over the years had acquired an easement by prescription for ingress and egress over the road.
2. Appellants had acquired an easement of necessity over appellee’s lands.

The trial court made the following findings:

1. “. . . [A]ny road upon or through the defendant’s property should be found to be wholly owned by the defendant and to have been abandoned by the public.
2. “. . . [Pjlaintiffs do not require an easement of necessity over and through the property of defendant . . . plaintiffs have complete access to the properties of the plaintiffs.”

It is settled law that findings of fact of a chancellor will not be set aside by an appellate court unless they are “clearly erroneous (clearly against the preponderance of the evidence)” even though the case is reviewed de novo. Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973); Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248 (1971); Harrison v. Collins, et al., 247 Ark. 210, 444 S.W. 2d 861 (1969); Rule 52 of the Rules of Civil Procedure.

We now turn to the evidence to determine whether the chancellor’s findings are clearly against the preponderance of the evidence as asserted by appellants.

Appellants are the owners of a 43 acre tract of land that surrounds, in a semi-circle, a three acre tract of land owned by the appellee. Appellee’s south boundary and approximately three hundred feet of appellants’ south boundary, which are adjacent to appellee’s east boundary, front the north right-of-way line of Highway 282.

Appellants acquired a portion of their 43 acres in 1963 from one John Furlow and in 1965, appellants acquired a parcel of land that lies north of appellee’s northwest corner from one Pace. Appellants’ land that lies east of appellee’s property and fronts Highway 282 was acquired sometime after 1965.

Appellee acquired his property in 1963 and later sold it in 1966, bút repurchased it in 1977 from one Glenn Cluck.

The road in question, and which has been referred to as a trail in the testimony, is located on the extreme west side of appellee’s property. This roadway, which has an entrance that joins Highway 282, extends across appellee’s property to his north boundary line, and continues to the parcel of land that appellants acquired from Pace.

Morris Teague testified that while the general public has made use of this road for 50 years, he has used it for 19 years in order to gain access to the property he acquired in 1965; that on May 1, 1978, appellee closed the road by installing a gate near the entrance at Highway 282 and placed rock and debris in the roadway which prevent the appellants and the public in general from exercising their right of ingress and egress over appellee’s property.

On the other hand, appellee testified that since he repurchased the property in 1977, appellants have made use of the road on only one occasion; and that the road was closed in order to afford his cattle a larger pasture area. Appellee also testified that appellants have access to their property over and through the three hundred feet of land that fronts Highway 282.

Appellants called several witnesses whose testimony may be summarized as: that they used the road occasionally to hunt, fish or cut firewood off of the property owned by the appellants. One witness for appellants, Emery Serratt, testified that he had not actually driven on the road in 20 or 25 years; and that the last time he used the road was in 1969 or 1970 when he went rabbit hunting.

Witnesses for the appellee testified essentially that they do not recall anyone using the road after 1965.

While the testimony offered by the witnesses may have some relevance to the issues before us, we believe that appellee’s exhibit A, a decree of the Crawford County Chancery Court issued on October 4, 1965, involving a case where appellants were defendants in an action brought by Virgil Marston and Tempie Marston to quiet title to property now owned by appellee and on which the road in question is located, is determinative of the question relating to appellants’ claim of an easement by prescription.

The decree provides:

“The Court further finds that the Defendants, Morris Teague and Jo Ann Teague, have no interest of any nature in and to subject lands; . . . (Emphasis added)
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that title to the above described property is forever quieted and confirmed in ... Virgil Marston and Tempie Marston, and that any claim of ownership of the Defendants, ... is hereby removed as a cloud upon the Plaintiffs’ title. ...”

It is apparent that the Crawford Chancery decree divested whatever interest appellants possessed in appellee’s roadway out of appellants and vested the interest in appellee’s predecessors. Consequently, in order for appellants to establish their claim of an easement by prescription, it was incumbent on them to show that since October 4, 1965, they have used appellee’s roadway openly, notoriously, adversely and continuously for seven years, and with knowledge to appellee that it was being used adversely. St. Louis Southwestern Railway Company v. Elmore, 185 Ark. 364, 47 S.W. 2d 39 (1932); McGill v. Miller, 172 Ark. 390, 288 S.W. 2d 932 (1926); Johnson, et al. v. Lewis, et al., 47 Ark. 66, 2 S.W. 329 (1885). it is settled law that mere use of another’s lands does not ripen into a prescriptive right unless the circumstances are such as to put the owner on notice that the property is being used adversely under a claim of right. Sebastian Lake Developments, Inc. v. United Tel. Co., 240 Ark. 76, 398 S.W. 2d 208 (1966); Wilson v. Brandenburg, 252 Ark. 921, 481 S.W. 2d 715 (1972).

Use of unenclosed lands for passage is presumed to be permissive and not adverse. Corruthers v. King, 235 Ark. 977, 363 S.W. 2d 413 (1963); Rochelle v. Piles, 244 Ark. 606, 427 S.W. 2d 10 (1968). The individual asserting an easement by prescription has the burden of proof to show by a preponderance of the evidence that use of the roadway has been adverse to the owner and his predecessors in title under claim of right for the statutory period. Stone v. Halliburton, 244 Ark. 392, 425 S.W. 2d 375 (1968). The determination of whether use of the roadway is adverse or permissive presents a fact question. Hoover v. Smith, 248 Ark. 443, 451 S.W. 2d 877 (1970); Stone v. Halliburton, supra.

The testimony offered by both the appellants and appellee regarding the use of appellee’s roadway by the public in general and appellants in particular is conflicting. Appellee testified that he had seen the appellants make use of the roadway once or twice, while some of the witnesses for appellee testified that they had not seen anyone use the roadway with the exception of appellee. On the other hand, appellants testified that they have used the roadway continuously over the years and their witnesses testified that appellants, as well as the witnesses themselves, made use of the roadway periodically. Under these circumstances, it was the duty of the chancellor to determine credibility and accord the evidence its proper weight. We are unable to say, from this record, that the findings of the chancellor to the effect that appellants have no easement by prescription in appellee’s roadway is clearly erroneous or clearly against the preponderance of the evidence..

Finally, we are also persuaded that the chancellor’s finding that appellants did not acquire an easement of necessity over appellee’s roadway is not clearly erroneous or against a preponderance of the evidence. The evidence reflects that appellants have approximately 300 feet of land fronting Highway 282 which afford them ingress and egress to their property. Appellants argue that in order to gain access to their property north of appellee’s property, over their own lands, appellants would be required to expend approximately $2,000.00 in constructing a roadway. Appellee disputes appellants’ contention. Appellee testified that he had observed Mr. Teague driving his pickup truck in the vicinity of the Pace property without making use of appellee’s roadway. Indeed, the trial court was presented with a fact question as to whether appellants had access to their property over their own lands.

The Arkansas Supreme Court in articulating the basis upon which an easement by way of necessity rests explained in Boullioun v. Constantine, 186 Ark. 625, 54 S.W. 2d 986 (1932):

The rule is laid down by Chancellor Kent in his Commentaries in speaking of a way of necessity that ‘it is either created by express words or it is created by operation of law as incident to the grant, so that in both cases the grant is the foundation of the title’; ... ‘A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of land of a stranger, for, if one owns land to which he has no access except over the lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own.’

The record before us does not reflect that appellants’ grantor of the property north of appellee’s lands was also the grantor under whom appellee claims title. Hence, it is plain that appellee is a stranger to appellants’ title.

Affirmed.

      A dwelling house that was located on the Pace property when appellants bought the property is no longer in existence. In addition, a second dwelling house, identified as the “Dement Property”, and which is located in the same area, has not been occupied for the past ten years.


text:
    Mary TURNER v. Charles L. DANIELS, Director of Labor, and DONAVAN’S INN
    CA E 80-71
    605 S.W. 2d 465
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   George Howard, Jr., Judge.

Claimant was denied unemployment benefits under Ark. Stat. Ann. § 81-1106(a) (Repl. 1976) on the grounds that she left her last work voluntarily and without good cause connected with the work. '

Section 81-1106(a) in relevant part provides:

. . . [A]n individual shall be disqualified for benefits:
(a) ... If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Provided no individual shall be disqualified under his subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification; . . . (Emphasis added)

On October 21, 1979, claimant advised her employer that her son had sustained an injury resulting in fractures to both legs and that her son would be confined to her home.

Claimant testified that Donna, one of her employers, “asked me did I need to quit for a while?”

Claimant further testified:

CLAIMANT: And I told her yes I did, but I didn’t know how long I’d be off a work but I did want to come back to work when I got where I could and to my knowledge I understood that was her way of giving me my leave. I don’t know if it was or not.
REFEREE: Uh, huh. Well, did you ask her though if you might just have a leave of absence instead?
CLAIMANT: No I didn’t. I was so tore up at the time, I just didn’t really state it in that words, I just took it to believe. . .

The Appeals Tribunal, in affirming the denial of benefits, concluded that claimant quit her job in order to take care of her son without taking the necessary steps to request a leave of absence or making reasonable efforts to “preserve her job rights.”

The Board of Review has affirmed the decision of the Appeals Tribunal.

While the record does not reflect that claimant specifically requested a leave of absence in order to protect her job rights, we are persuaded that it is clear from the exchange between the employer and the claimant regarding the injuries of her son and the necessity of her presence, during his confinement, clearly establishes that the employer and the claimant intended that claimant’s departure would be temporary; and that as soon as her son had recovered to the extent that claimant could return to her employment, she could do so. In other words, we hold that there was substantial compliance with Section 81-1106(a) imposing a duty on an employee to take steps to preserve his job rights when he leaves his employment for a personal emergency in order to avoid disqualification for benefits.

Here, the employer, after being advised of claimant’s personal emergency, voluntarily suggested that claimant needed “to quit for a while.” The employer did not appear before the Appeals Tribunal and, consequently, claimant’s testimony stands uncontradicted. We are persuaded that it would be contrary to good conscience to impose a disqualification under the circumstances existing here.

The evidence here falls short of the substantiality requirement and we, accordingly, reverse the holding of the Board of Review.

Reversed and remanded.


author: David Newbern, Judge. Steeir Hays, Judge,

text:
    DELTIC FARM AND TIMBER CO., INC. v. Lonnie DUNN and Charles L. DANIELS, Director of Labor
    E 80-53
    605 S.W. 2d 471
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      James E. Baine, for appellant.

      Herrn Northcutt, for appellees.
   David Newbern, Judge.

In this employment security benefits appeal, the appellant-employer contends insufficient consideration was given to the testimony of the employer’s representative before the appeals tribunal. The testimony of the employer’s representative was admittedly hearsay with respect to the facts surrounding the employee’s dismissal for misconduct. The appeals tribunal held for the employer. The board of review reversed because it found the evidence was not sufficient to establish disqualifying misconduct within the meaning of Ark. Stat. Ann., § 81-1106(b) (Repl. 1976).

There was a sharp conflict between the testimony before the appeals tribunal of the employee and the employer’s representative with respect to the circumstances surrounding an incident which precipitated the discharge. We agree with the board of review’s determination that there was substantial evidence to support the employee’s position. Although we had not decided the case of Wood v. Employment Security Division et al., 269 Ark. 613, 599 S.W. 2d 435 (Ark. App. 1980), at the time this case was before the board of review, the principle we announced there applies here. In the face of direct evidence to the contrary, we will not accept as “substantial evidence” the testimony of a company representative who has no direct knowledge of relevant facts.

The appellant claims that this case was improperly remanded to the appeals tribunal by the board of review to obtain testimony of the claimant. No authority restricting the authority of the board in this respect is cited. The appellant also contends the referee should have informed the company that his testimony was hearsay and thus insubstantial. We are unaware of any such requirement, and although the referee should feel free to answer procedural questions posed by the parties before him, we question whether the function of the referee should be to suggest to the parties the evidence which should be presented by them. The appellant does not suggest it was in any way prevented from presenting more direct evidence.

Affirmed.

Steeir Hays, Judge,

dissenting. Claimant was discharged for excessive absenteeism and for failing to appear for work on October 27, 1979, a Saturday. An Agency determination denied unemployment benefits to the claimant on the basis of Section 5 (b) (1) and claimant appealed to the Appeal Tribunal. Claimant failed to appear at the hearing scheduled for December 5, 1979, and the Appeal Tribunal affirmed the Agency determination.

Claimant appealed from the Appeal Default Notice and the matter was remanded to the Appeal Tribunal for another hearing. Claimant and a representative from the employer appeared at the second hearing and testimony was taken. The employer testified the claimant was discharged for two reasons: excessive absenteeism, 17 days, and failure to appear for work on October 27, 1979-

The testimony of the claimant corroborated the testimony on behalf of the employer on significant points, nevertheless, for reasons not fully explained the Board of Review reversed the Appeal Tribunal and upheld the claim, commenting that the employer’s evidence was “related on hearsay.”

Some of the testimony on behalf of the employer may have been hearsay, however, the claimant does not deny the charge that he was absent 17 days during the preceding year — in fact, he admits it. The Board of Review makes no mention of this undisputed evidence, which in my view is more than sufficient to support the decision of the Appeal Tribunal, but concentrates on the dispute over the incident of October 27, the more insignificant of the two grounds for discharge. The employer’s testimony was that the claimant was one of three employees in the shipping department and that two men were needed on October 27. One of the three, Robert Baxter, was excused to attend the funeral of a member of his family and, thus, the claimant and John Eason were expected to work. Eason appeared and the claimant failed to appear. The claimant’s testimony in regard to his failure to appear cannot be credited, even from a printed record. He contends that he made the arrangements with Baxter to appear in order that he, claimant, could go squirrel hunting, notwithstanding the funeral arrangements of Baxter’s family. A scrutiny of the claimant’s testimony demonstrates the absence of credibility. One rule often recited in worker’s compensation cases is that if the reviewing court is convinced that fairminded individuals could not have reached the conclusion arrived at by the commission, the case should be reversed. Purdy Flower Shop v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977). That principle is made applicable to the review of appeals in unemployment insurance claims by Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978), and on that premise I would reverse.


author: David Newbern, Judge.

text:
    Diane FANT v. Charles L. DANIELS, Director of Labor, and MARIANNA LAUNDRY
    E 80-75
    605 S.W. 2d 473
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980
    Appellant, pro se.

      Herm Northcutt, for appellees.
   David Newbern, Judge.

In this employment security benefits case, we must interpret Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). That section disqualifies persons who voluntarily leave their jobs without good cause connected with the work, with the proviso that:

[N]o claimant shall be disqualified under this subsection if he has voluntarily left his last work to accompany, follow, or join the other spouse in a new place of residence if he has clearly shown upon arrival at the new place of residence, an immediate entry into the new labor market and is, in all respects, available for suitable work.

The appellant left her job at Marianna Laundry to join her spouse at Iuke, Mississippi, December 19, 1979. She registered for work with the Mississippi Employment Security Agency on January 14, 1980. She does not dispute the fact that she did not in any way attempt to enter the labor market between December 19, 1979, and January 14, 1980. Rather, her contention both here and below is that businesses were closed during the holiday seasons and she had numerous household chores made necessary by the move and including entering her children in their new school. She candidly states she was not available for work during that period, and that it would not have been appropriate for her to have registered for work before January 14, 1980.

The board of review has determined the appellant did not enter the labor market “immediately” upon her arrival at her new home. Given the claimant’s admissions we cannot say the board’s conclusion was incorrect. Of course, the term “immediately” must be interpreted reasonably, but we do not deem it unreasonably to have held that the appellant did not comply when she failed to register with the agency or otherwise failed to seek employment for 26 days after arrival at her new residénce. Her contention that she was not available for work during that time strengthens the board’s conclusion.

Affirmed.


text:
    James GARRISON v. STATE of Arkansas
    CA CR 80-34
    605 S.W. 2d 467
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Guy H. Jones, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The question on this appeal is whether the state has lived up to its obligation to afford the appellant a speedy trial. We conclude that because the appellant was not tried within three terms of court as provided in A. R. Crim. P. 28.1(b), and because the delay was not attributable to the appellant or otherwise excusable, the state has not met its obligation, and the conviction must be reversed and the case dismissed. As our decision on this point disposes of the appeal, we will not address the appellant’s other point having to do with exclusion of witnesses from the trial.

The following is a chronology of significant events:

July 22, 1977 Arrest and charge.
August 2, 1978 Defendant’s Motion for bill of particulars.
August 4, 1978 Trial date — case passed.
August 9, 1978 Bill of particulars filed.
August 11, 1978 Motion for more complete answers in bill of particulars.
August 17, 1978 Notice to counsel of October 16, 1978, trial date.
September 20, 1978 Petition for withdrawal of defendant’s counsel, Nathan Gordon. Order permitting withdrawal signed September 26, 1978, and entered on record September 28, 1978.
October 16, 1978 New trial date. Docket entries do not show why trial was not held.
January 22, 1979 Special prosecutor appointed because defendant’s new counsel was elected prosecutor.
January 29, 1979 Trial reset for February 5, 1979.
February 5, 1979 Trial date. Defendant and counsel, Andre McNeil, appear for trial, but case not tried.
August 28, 1979 Attorney McNeil on behalf of defendant moves for a continuance and for permission to withdraw as counsel. Order issued resetting trial date for October 4, 1979.
October 3, 1979 Motion to dismiss for lack of speedy trial.
October 4, 1979 Trial.

The appellant asserts, and the state does not contest the assertion, that the third term of court after the date the appellant was arrested and charged expired May 9, 1979- To justify overruling the appellant’s motion to dismiss for lack of a speedy trial, the trial court, in colloquy with the Prosecutor said:

THE COURT:
I’m reading from the fourteenth annual report of the Judicial Department of Arkansas, 1979- Statistics show as of January 1, 1979, there were 786 cases, civil and criminal, pending in Faulkner County. That during that year 678 cases were filed, 650 cases were terminated, leaving at the end of the year or the beginning of 1979 924 cases.
The court docket in Faulkner County has been such as to preclude the trying of every case within the proper time; that the state of the docket is such that the case has been set before but for some reason or other was not tried; that I believe the rule of speedy trial is subject to the crowded conditions of the docket, which certainly do or did exist in Faulkner County during this period of time.
The defendant has through his attorneys appeared, has pled in this case, has requested delays in this case since the first day of May or the first Monday in May of 1979; he has not shown any loss or suffering occasioned by the delay in this trial, and I’m going to overrule your motion.
MR. THOMPSON [THE PROSECUTOR]:
Your Honor, may I state a couple of things for the record? In Arkansas case of Stuart versus the State the Court says, ‘We can’t shut our eyes to the known fact that delays diminish the chance of conviction, and that hope is usually sought or acquiesced in by the accused, and that he must have placed himself on the record in the attitude of demanding a trial or resisting postponements.’
This is approved in other cases. Also, I’d like to cite Rule 30.2, ‘Failure of defendant to move for a dismissal prior to plea of guilty or trial shall constitute a waiver of rights under these rights.’ And, also, state that the prosecution as of this morning was unaware of a motion to dismiss for want of prosecution.
THE COURT:
And another reason for overruling this thing is untimely filing. It was not filed within the prescribed time.

Thus, the court offered three reasons for the delay, i.e., a crowded docket, an untimely motion and delay requested by the defendant after the period required by rules 28.1 and 28.2 had run. On this appeal, the state argues that the trial court was correct in denying the motion because some of the delay was attributable to the defendant, and thus excluded pursuant to rule 28.3(c) or that the delay was for “good cause” and thus excluded pursuant to rule 28.3(h). To some extent the trial court’s reasons and the appellee’s arguments overlap. We find none of them to be persuasive.

1. The crowded docket.

A crowded docket is not an acceptable excuse for denying a speedy trial absent “exceptional circumstances.” We know of no case law in this state which defines the term “exceptional circumstances” as it is used in rule 28.3(b). We are, however, assisted by the commentary accompanying the American Bar Association Standards for Criminal Justice (1967). The commentary which accompanies this particular rule prior to its adoption in this state was as follows:

Although it is appropriate to allow added time under certain exceptional circumstances, such as those which result in the unavailability of the prosecutor or the judge at the time the trial is scheduled, delay arising out of the chronic congestion of the trial docket should not be excused. Some states by statute excuse delay “for the want of time to try” the case, e.g., Ark. Stat. Ann. § 43-1710 (1964); some others read their “good cause” exceptions as encompassing such delay, while a few others excuse such delay even absent a good cause provision. Note, 57 Colum. L. Rev. 846, 857-59 (1957). This is justified on the ground that “the statutory and constitutional right to speedy trial is designed only to prevent laches on the part of the prosecution, and not to guard against court delay.” Id. at 858.
That view is rejected here for the following reasons: (1) The defendant can be prejudiced by delay, whatever the source. See Note, 108 U. Pa. L. Rev. 414, 421 (I960). (2) Such delays are contrary to public interest in the prompt disposition of criminal cases. (3) If congestion excuses long delays, there is lacking sufficient inducement for the state to remedy congestion. (4) The calendar problems which arise out of trying to make maximum use of existing facilities do not ordinarily require time beyond that otherwise allowed. But, while delay because of a failure to provide sufficient resources to dispose of the usual number of cases within the speedy trial time limits is not excused, the standard does recognize congestion as justifying added delay when “attributable to exceptional circumstances.” Although it is fair to expect the state to provide the machinery needed to dispose of the usual business of the courts promptly, it does not appear feasible to impose the same requirements when certain unique, nonrecurring events have produced an inordinate number of cases for court disposition. Thus, when a large-scale riot or other mass public disorder has occurred, some leeway for additional time is required to ensure that the many resulting cases may receive adequate attention from the prosecutor’s office, defense counsel (possibly a single defender office), and the judiciary.
[ABA Standards, Commentary, Pgs. 27-28].

Thus, it is clear to us that the rule was not intended to and should not permit the state to deny a speedy trial on the basis of crowded docket conditions absent an “exceptional circumstance,” such as is mentioned in the Commentary, which does not appear here.

2. Filing time.

With respect to the judge’s observation that the motion to dismiss was not timely filed, we need only observe that rule 30.2 provides that a defendant waives his right to a speedy trial if he fails to move for dismissal “prior to a plea of guilty or trial,” and in this case the appellant did not plead guilty, and his motion was made before he was tried.

3. “Good cause” for delay.

The state makes much of the fact that the appellant had four successive attorneys representing him at various times during the proceedings. However, it is clear that, during the period between his arrest and the end of the third full term of court (May 7, 1979), the defendant did not ask for any delay as a result of that fact or any other. The state would have us say there was “good cause” for the delay and thus it was excusable in accordance with rule 28.3(h). For that proposition the case of Campbell v. State, 264 Ark. 372, 571 S.W. 2d 597 (1978), is cited. In that case a delay was ordered for the accused to obtain new counsel, Although it does not appear that the accused asked for the delay in so many words, it is apparent from the quotation in the opinion of the dialog between the accused and the court that he wanted it so as to obtain assistance from relatives in seeking new counsel. In the case before us, there is no such evidence.

Also cited by the appellee is the case of Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151 (1978). In that case our supreme court held there was no denial of a speedy trial when the delay was caused by the fact that the accused assaulted his counsel which led them to ask for permission to withdraw. The court said that the lower court’s action in ordering a continuance was a delay for “good cause” within rule 28.3(h). The case is distinguishable, because there the withdrawal of counsel occurred “a few days” before the time the trial was scheduled. Here, the only possible trial date which could have been passed because of withdrawal of counsel was the one on October 16, 1978. That was 27 days after Mr. Gordon petitioned to withdraw and 20 days after the order permitting withdrawal was signed. From the opinion in the Foxworth case, we canot tell whether a request for continuance was made by the accused. Whether or not such a request was made there, we feel the circumstances in the case before us are ample to distinguish it, and there clearly was no request for delay here.

While we need not comment on each of the dates in the sequence set out above, we deem it significant that had the appellant been tried on February 5, 1979, the last of the dates set for trial before October 4, 1979, his trial would have been well within the period which both parties agree would have been adequate under our rules. All we know about the reason for the failure to hold the trial on the date is the appellant’s statement in his brief that he appeared on that date with his attorney ready for trial, and the matter was deferred because another case was to be tried that day. The appellee does not challenge that statement.

4. Continuance request after time had passed.

The only request for a continuance by counsel for the accused occurred long after the time for a speedy trial, as specified in rule 28.1(b), had passed. This raises the question whether an accused may waive his right to a speedy trial by failing to move for dismissal on that basis rather than asking for a continuance, or moving for dismissal or continuance in the alternative. We know of no Arkansas case on that point, but we are persuaded by the decision of a California District Court of Appeal in Gregory v. Justice Court, S. Sacramento Judicial District, 168 Ca. App. 2d 719, 336 P. 2d 584 (1959). There, the court was dealing with a requirement that a misdemeanor allegation be tried within 30 days after arrest. The California court agreed with the appellant’s contention that, while one may waive one’s constitutional right to a speedy trial, the waiver must take place prior to the expiration of the statutory period. The court said:

If such were not the rule, there would be no limitation of time in which one charged with a crime could be brought to trial, although the statutory time limit had long since expired. Such a rule would defeat a defendant’s constitutional right to a speedy trial. Such is not the intent or purpose of the law.
[336 P. 2d at 586, Citation omitted.]

The state bears the burden of showing a speedy trial has been granted in response to a motion to dismiss for lack of a speedy trial. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697, (1980), Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970). All we have in the brief for appellee, in addition to the citations noted above is a citation to Stewart v. State, 13 Ark. 720 (1853), of which the prosecutor spoke to the court, supra, which recognizes that accused persons usually seek to delay their trials, as well as a reference to the trial judge’s stated reasons for overruling the motion. Beyond that, we have only the statement of the appellee that the appellant’s contention that none of the delays were caused by him or his counsel is incredible. The appellee does not argue that any specific period of time is to be charged to the appellant. Even if we were sure the request for a bill of particulars caused the first trial date to be passed and that the withdrawal of Mr. Gordon caused the October 16, 1978, date to be passed (and neither conclusion is demonstrable in the record before us) those would hardly have justified delaying the trial until October 4, 1979- In addition, the problem which arose when the appellant’s counsel was elected prosecutor certainly did not justify the delay from January 22, 1979, the date the special prosecutor was appointed, until October 4, 1979, or more than eight months.

We find the. appellant’s contentions to be credible and hold the state has failed to meet its burden to show the delays fell within any of the exceptions to our rules requiring a speedy trial.

Reversed and dismissed.

      See also, Comment, 25 Ark. L. Rev. 234 (1971).


author: John A. Fogleman, Chief Justice.

text:
    LIBERTY BONDING COMPANY v. STATE of Arkansas
    80-121
    604 S.W. 2d 956
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980

      Douglas W. Parker, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Pewell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

This appeal involves the forfeiture of two bonds executed by appellant, Liberty Bonding Company, which is owned by Allen Felkins. Appellant posted an appeal bond in the penal sum of $20,000 on February 8, 1979, for the appearance of Larry Cureton in case No. CR-75-110 in the Circuit Court of Sebastian County. Subsequently, appellant posted an appearance bond in the penal sum of $15,000 for Cureton’s appearance in case No. CR-79-283 in the Sebastian Circuit Court. When Cureton failed to surrender himself in execution of a sentence in each of the cases, judgment was rendered against appellant on both bonds. The judgment was for $15,000 on each of them. The judgments were rendered separately, but the cases were consolidated for the purpose of this appeal. Appellant asserts three points for reversal, viz:

I
THE TRIAL COURT HAD NO AUTHORITY TO CONTINUE THE BOND IN FORCE IN CR-79-283 BEYOND THE TIME OF SENTENCING WITHOUT THE CONSENT OF THE SURETIES AND THEREFORE WAS WITHOUT AUTHORITY TO FORFEIT THE BOND.
II
THE TRIAL COURT ERRED IN FORFEITING THE BOND IN CR-75-110 AFTER HAVING DEFENDANT LARRY CURETON IN CUSTODY IN CR-79-283 WHEN THE COURT ITSELF HAD RELEASED THE DEFENDANT FOR A PERIOD OF THREE WEEKS SUBSEQUENT TO SENTENCING THE DEFENDANT TO THE PENITENTIARY.
Ill
THE TRIAL COURT ABUSED ITS DISCRETION IN ENTERING JUDGMENT UPON THE BOND FORFEITURES IN AN EXCESSIVE AMOUNT.

We reverse the judgment in Sebastian Circuit Court No. CR-79-283, but affirm the judgment in Sebastian Circuit Court No. CR 75-110.

I

Pursuant to a plea bargain, Cureton appeared with his attorney, Robert S. Blatt, for the purpose of entering a plea of guilty in CR-79-283 on charges of breaking or entering and of theft of property. The court sentenced Cureton to nine years imprisonment, with three years suspended, on each count of the charge, to run concurrently with each other and with Cureton’s sentence in CR-75-110, which was then pending in the Court of Appeals. The state’s petition against appellant asked that appellant be required to show cause why judgment should not be entered against it on the bond for the failure of Cureton to appear on September 24, 1979, as ordered by the circuit court.

When Cureton appeared for sentencing on August 24, 1979, the trial judge examined the plea sentence Cureton had signed, noted a statement therein that Cureton was to remain on bond until September 14, 1979, when he was to surrender, and asked, “has the bondsman agreed to that?” Cureton’s attorney responded, “Yes, sir, as far as we know he will do that.” The judge responded that if the bondsman did not agree, this could not be done. After sentencing Cureton, the judge stated that he could remain on bond, if it was all right with the bondsman, until September 14, 1979, at 2:00 p.m.

There is no evidence that appellant ever agreed to this arrangement or that it had ever authorized Blatt to speak for it. Blatt testified that no one from the bonding company was present when Cureton appeared for sentencing. Blatt said that the answer he gave to the court’s inquiry was based upon what Cureton had told him. He stated that the hearing on August 24 had been set on a petition to revoke probation of Cureton’s wife (who was his codefendant) on another charge and that notice had gone to Sentinel Bonding Company, as her bail. He said that no proceedings relating to Cureton had been scheduled for that date, so there had been no reason for him to notify appellant, or for appellant to have known, of Cureton’s appearance on that date. Blatt admitted that he had written the sentence about Cureton’s release until September 14, in order to make sure that Cureton was not taken into custody, but that he did not “check out” Cureton’s statement to him that the bonding company had agreed.

Allen Felkins testified that he was not present at the hearing on August 24, and had no notice of it. He stated that he never had any intention of remaining on Cureton’s bond in CR-79-283 subsequent to the entry of judgment against Cureton, and that he had never told either Cureton or Blatt that he would do so. He said that he would not remain on a bond for anyone who had been sentenced to the penitentiary, not even his own brother, much less Cureton, that he had never remained on any bond after a defendant had been sentenced to the penitentiary, and that he was normally released from a bond when a defendant was either released by him or was sentenced.

A deputy circuit clerk testified that neither appellant nor any representative of appellant was present in the courtroom on August 24, 1979- John Stauffer, Court Administrator for Sebastian County, testified that it was his practice to check with a bail bondsman to verify the bondsman’s willingness to remain on a defendant’s bond in cases calling for surrender on a date subsequent to sentencing. He did not do so in this case, because he had not been present when Cureton was sentenced and only learned of the sentencing by later examining the docket sheet. He did not talk with appellant until Monday, August 27, when Felkins asked him what, if anything, had happened on Larry Cureton.

Stauffer testified that, on August 20, he had sent a notice to Sentinel Bonding Company and was advised by that company that Liberty was the surety on the bond. Stauffer said that he felt certain that he had then notified appellant.

The bond in question was executed in the Municipal Court of Fort Smith. It was an undertaking that Cureton would appear before the court “at the time indicated” and further guaranteed “all subsequent appearances before any Court having jurisdiction, including appearances relating to appeals and on remand, until the Defendant is lawfully discharged, or upon rendition of final judgment has surrendered himself in execution thereof.”

We agree with appellant that the controlling authority in this case is Suit v. State, 212 Ark. 584, 207 S.W. 2d 315. The bond in that case provided that Suit “would appear in circuit court. ... to answer said charges and would render himself amenable to the orders and process of said court and if convicted render himself in execution thereof.” Suit appeared, pleaded guilty, and was sentenced, but the court suspended the execution of the sentence to allow Suit to comply with the order of a chancery court and ordered that he remain on the “present bond.” When Suit did not surrender or appear, the court rendered judgment against the sureties. We held that the pronouncement of a sentence on a defendant takes him out of the custody of the bail and puts him in the custody of the proper officers of the law, even though the court has specifically directed that the defendant remain on his present bond.

The sentence was definitely pronounced on Cureton, but the state contends that the statute in effect at the time Suit was decided no longer governs. That is true, but we see no difference in this situation. The statute then in force, Ark. Stat. Ann. § 43-707 (Repl. 1977) required that the bail guarantee that the defendant at all times render himself amenable to the orders and process of the court in prosecution of the charge, and, if convicted, render himself in execution thereof. Rule 9.2 (e). Ark. R. Crim. P. vol. 4A Ark. Stat. Ann. (Repl. 1977) provides that an appearance bond shall guarantee all subsequent appearances of a defendant on the same charges or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand. Neither the language of the bond nor of the procedural rule is significantly different from the bond and statute involved in Suit in respect to the responsibility of the bail, after pronouncement of sentence, as clearly recognized by the trial judge at the time of sentencing. The possibility of appeal has no bearing on this case, because there is no appeal from a guilty plea. Rule 36.1, Ark. R. Crim. P. vol. 4A Ark. Stat. Ann. The judgment rendered on this bond was erroneous.

II

We do not agree with appellant that it was relieved of its obligation on the appeal because the state had custody of Cureton after he was sentenced in CR-79-283. The appeal bond was a distinct and separate obligation. No action was taken by the state when Cureton was sentenced that prevented Cureton from surrendering himself, as required by the appeal bond, in execution of the judgment. While Cureton did not remain subject to the control of his bail, insofar as case No. CR-79-283 is concerned, after having been sentenced on his plea of guilty, he remained in the custody of his bail on the appeal bond for the purposes of the judgment from which the appeal was taken. The state did not, and has not, put Cureton beyond the control and custody of the bail. When there is no act of God, the state or a public enemy, or actual duress to prevent appearance by an accused on bail at the time fixed by the terms of the bond, the security is not released from forfeiture. Tri-State Bonding Co. v. State, 263 Ark. 620, 567 S.W. 2d 937. The state did nothing to prevent Cureton from appearing pursuant to the appeal bond.

This situation bears some similarity to that in Dunlap v. State, 66 Ark. 105, 49 S.W. 349. There, one who was in custody on two charges escaped before the time for his appearance pursuant to bail granted on three other charges. We held that the fact that the defendant was in custody at the time of his escape did not discharge his bail from liability on the bond, because the defendant was not in custody at the time his bail was bound for his appearance and the fact that he had been in custody was no obstacle to his subsequent appearance in discharge of the obligation of his bail. What we said in Dunlap is peculiarly appropriate here, i.e.:

The consideration of the bond of the bail was the discharge of Aycock from custody for the offense for which he had given bail to answer. It does not appear that he was ever held in custody for the same offense after the bond of his bail had been accepted and approved by the sheriff. He stood discharged from custody for said offense at the time of his escape, but he was under arrest for another and distinct offense. His bail executed the bond for his appearance with the understanding implied by law that he could be arrested for any other offense. There was no failure of the consideration of the bond, or the condition upon which the bail executed it. ***

If Cureton had been held in custody and then escaped before the time for his surrender on the appeal bond, appellant would have been liable on the bond. It is at least as appropriate that appellant be liable under the circumstances prevailing here.

Ill

Appellant pleads for a reduction of the amount of the bond forfeiture. It states that the expenses incurred by the state in attempting to apprehend Cureton have amounted to the issuance of two bench warrants and the entry of Cureton’s name into the NCIC computer. Yet Cureton is not in custody and there is no way of estimating the ultimate expense to the state of taking him into custody. Appellant has been unsuccessful in its efforts to surrender Cureton. If it had been successful, undoubtedly the trial court would have given it greater consideration. Appellant claims that it has spent $12,615 in attempting to apprehend Cureton. Some of that amount is not well documented. The trial judge allowed a remission of $5,000. We cannot say that there was any abuse of the trial court’s discretion in this regard.

The judgment on the bond in CR-75-110 is affirmed but the judgment on the bond in CR-79-283 is reversed.


text:
    Charles Martin NEAL v. STATE of Arkansas
    CR 75-115
    605 S.W. 2d 421
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980
   John A. Fogleman, Chief Justice.

Petitioner Charles Martin Neal was sentenced to death by electrocution by the Circuit Court of Pulaski County on May 20, 1975, having been found guilty of capital felony murder. He appealed his conviction and sentence to this court. The judgment was affirmed by this court on December 22, 1975, and Neal’s petition for rehearing was denied January 26, 1976. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Our mandate went to the Governor on April 15, 1977. Neal’s petition for certiorari was granted by the United States Supreme Court and the judgment was vacated and the cause remanded to this court for consideration in the light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976); Proffit v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. 2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed. 2d 974 (1976). See Neal v. Arkansas, 429 U.S. 808, 97 S.Ct. 45, 50 L.Ed. 2d 69 (1976). We adhered to the views expressed upon our first consideration of the appeal and again affirmed the judgment on March 28, 1977. Neal v. State, 261 Ark. 336, 548 S.W. 2d 135. Certiorari was denied by the United States Supreme Court on October 3, 1977, at 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed. 2d 158.

Neal filed his petition for permission to proceed under Criminal Procedure Rule 37 on June 9, 1980. This was more than three years after Neal was committed, and would be too late under Rule 37.2 (c), Arkansas Rules of Criminal Procedure, Ark. Stat. Ann. Vol. 4A (Supp. 1979), unless the ground asserted would be such as to render the judgment against Neal absolutely void, except for the extended period of time necessary for the disposition of the direct appeal in this case.

In his petition, appellant asserts the following grounds for postconviction relief:

1. Ineffective Assistance of Counsel.
Appellant’s attorneys at the trial and on direct appeal did not
(a) adequately prepare his defense;
(b) object to the introduction of evidence;
(c) appropriately advise petitioner concerning his plea of not guilty by reason of insanity;
(d) cross-examine vigorously;
(e) present effective opening or closing arguments or otherwise provide petitioner the standard of performance that was his constitutional due.
2. The 1973 death penalty statute as applied “violated” Lockett v. Ohio, 438 U.S. 586, in that it excessively limited consideration of mitigating circumstances.
3. The only aggravating circumstances found to exist, “pecuniary motive,” was defined arbitrarily, capriciously and vaguely in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 LEd. 2d 398 (1980).
4. There was no explicit jury finding beyond a reasonable doubt that petitioner deliberately or intentionally committed a homicide.
5. The standard for balancing aggravating and mitigating circumstances established by the Arkansas Legislature on March 3, 1975, should have been applied to petitioner’s sentencing hearing.
6. Eight jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, reh. den, 393 U.S. 898 (1968).
7. Petitioner’s confession was permitted to be introduced into evidence despite its being the result of coercion.

Petitioner and his counsel have unduly complicated the consideration of his petition by a misconception of proper procedure under Rule 37. His petition states, for the most part, only generalities and conclusions. This would in the ordinary case result in a summary denial of permission to proceed under the rule on grounds so stated. Petitioner’s counsel have proceeded on the misbegotten idea that specific allegations may be withheld from his petition but supplied in a memorandum of points and authorities, filed in support of the petition. Because this is a death penalty case, we will, in this case, but not hereafter, endeavor to consider the facts stated in the petition and memorandum as if they, considered together, constituted the allegations of the petition. We will not consider any grounds for relief not stated in the petition.

Neal and his attorneys also seem to have a total misconception of the purpose and role of Rule 37. It is not meant to function as a substitute for appeal, as a method of review of mere error in the conduct of the trial, or as a second opportunity to petition for a rehearing. Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934; Austin v. State, 264 Ark. 318, 571 S.W. 2d 584; Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. It is not intended to permit the petitioner to again present questions which were passed upon on direct appeal. Hulsey v. State, supra. Nor does it permit a petitioner to raise questions which might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Hulsey v. State, supra.

One point that was raised and disposed of on the first appeal was that jurors were excused by the trial court in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968). We considered this question on direct appeal and held against appellant in Neal v. State, 259 Ark. 27, 531 S.W. 2d 11, so this point is not a ground for relief under Rule 37. The basic question raised is not different, but petitioner seeks to make the argument that a “death qualified” jury is per se unconstitutional, relying upon Grigsby v. Mabry, 483 F.Supp. 1372 (E.D. Ark., 1980), now pending on appeal in the Eighth Circuit Court of Appeals. With all due respect, we simply do not agree with the theory underlying the federal district court’s opinion. If jurors who would not impose the death penalty under any circumstances are not excluded for cause, imposition of the death penalty would be haphazard. We adhere to the views we have expressed in Grigsby v. State, 260 Ark. 499, 542 S.W. 2d 275 and Venable v. State, 260 Ark. 201, 538 S.W. 2d 286. These views are fortified by the decision of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973 (1978), where arguments similar to those advanced by petitioner here were rejected.

We also considered and rejected the argument that the aggravating circumstance found to exist by the jury was unconstitutionally vague in appellant’s direct appeal. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. It is extremely difficult to understand an argument that the words “pecuniary” or “motive” are vague when considered either separately or in combination. Of course the words were “pecuniary gain” rather than “pecuniary motive.” We do not see how the decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed. 2d 398 (1980), holding that the words “outrageously or wantonly vile, horrible or inhuman” are unconstitutionally vague, has any bearing whatever on the issue here, as petitioner suggests.

The question of admissibility of petitioner’s confession was considered on direct appeal. We reviewed the entire record on the question and concluded that we could not say that the trial court’s finding that petitioner’s confession was voluntary was clearly erroneous or against the preponderance of the evidence. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17.

What we have said disposes of petitioner’s grounds which we have numbered. We will first consider those grounds alleged which clearly afford no basis for proceeding under Rule 37.

2. Petitioner argues that the jury was limited to consideration of only five mitigating circumstances in the sentencing phase of the trial. He contends that the Eighth and Fourteen Amendments were violated because the sentencing jury was precluded from considering all aspects of petitioner’s character or record or any of the circumstances of the offense that petitioner proffers as a basis for a sentence less than death, relying upon Lockett v. Ohio, supra. In that case, a four-judge plurality of the United States Supreme Court said:

We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. ***

No other justice joined in that part of the opinion. Two justices rejected it. As Justice White pointed out, only a plurality held that the sentencer may constitutionally impose the death penalty only as an exercise of his unguided discretion after being presented with all circumstances which the defendant might believe to be conceivably relevant to the appropriateness of the penalty for the individual offender. The judgment for reversal resulted from concurrence in the judgment by Justice White and two other justices. The Ohio statute considered in Lockett was quite unlike the Arkansas statute applied in Neal’s trial. That Ohio law required a trial judge to impose the death penalty unless he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she was under duress, coercion or strong provocation or (3) the offense was primarily the product of the accused psychosis or mental deficiency. The statute under which appellant was tried was materially different. It permitted evidence in the sentencing stage as to any matters relevant to sentencing. Ark. Stat. Ann. § 41-4710 (c) (Suppl. 1973). Under that act [Ark. Stat. Ann.. § 41-4701 et seq (Supp. 1973)], the jury was not compelled to impose the death sentence whenever it found aggravating circumstances but no mitigating circumstance, unless it also found that sufficient aggravating circumstances existed beyond a reasonable doubt to justify a sentence of death.

We find no merit in appellant’s argument that the requirement of unanimity for a jury finding of a mitigating circumstance rendered the verdict and sentence unconstitutional. We find nothing in the instruction given that related to the burden of proof of mitigating circumstances, if that matters. Not only do we find no merit in these contentions, these questions might have been raised at the trial and thereafter on the first appeal, but were not. It is too late for these contentions to be raised. Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934.

4. Petitioner argues that the sentence was invalid because there was no specific finding by the jury that Neal deliberately and intentionally killed the victim. The jury did find appellant guilty of a capital felony murder which was the unlawful killing of a human being committed by a person engaged in the perpetration of a robbery. It also found that there was not a mitigating circumstance on the ground that the capital felony had been committed by another person and the defendant had been an accomplice or his participation was relatively minor. In the direct appeal, we stated:

*** Appellant, aided by another man during the robbery of a service station attendant, bound the victim’s hands and feet and then shot him. After leaving the station they returned a short time later and, upon discovering the wounded attendant using the phone, the appellant shot him again. Death resulted from a total of seven pistol wounds.

Upon reconsideration, we added:

*** This robbery was calmly and deliberately planned and executed by Neal and his companion. The appellant and his accomplice first drove around breaking windows in several stores in order to set off burglar alarms, so the police would be diverted to answer these alarms in another area. The jury would have been justified in the belief that Neal was the executioner and that Neal fired the first, last and most of the other shots into the body of the sole attendant at the service station where the robbery was carried out. The victim was first shot when he was on the floor in a bay in the service station after he had been bound at the wrists and ankles by Neal. Seven shots were fired into his body and each of the wounds was potentially lethal. A witness testified that Neal had told him that he shot the man seven times. Both .22 caliber and .38 caliber bullets were recovered from the victim’s body. There was evidence tending to show that Neal had possession of both .22 and .38 caliber weapons during the robbery and that he had obtained the .38 caliber weapon for use in the robbery. The accomplice testified that it was Neal who went into the station and finally dispatched the helpless attendant, when the two robbers drove back to check on the situation of the service station and saw the attendnt using the telephone.

Appellant relies principally upon the separate opinions of Mr. Justice White and of Mr. Justice Blackmun in Lockett v. Ohio, supra. The opinion of Justice Blackmun does not support petitioner’s argument. Justice Blackmun’s position was that the Ohio judgment improperly provided the death sentence for one who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement or the degree of her mens rea in the commission of the homicide. In this case, however, the jury could have found that the capital felony was committed by another person and the defendant was an accomplice or his participation was relatively minor, but did not do so.

Mr. Justice White joined in the judgment in Lockett because he felt the Eighth Amendment is violated by the imposition of the death penalty without finding that the defendant possessed a purpose to cause the death of the victim. So far as we can tell, no other member of the United States Supreme Court shares that view.

That is another question that might have been, but was not, raised in any way in the trial court or on direct appeal.

5. This is still another question that might have been, but was not, raised in the trial court or on appeal. In any event, we find no merit in it. Neal was sentenced on May 26, 1975. We do not see how the provisions of a legislative act which, even though it was passed on March 3, 1975, did not become effective until January 1, 1976, could have been applied in Neal’s trial. We find no merit in appellant’s arguments to the contrary. If they are sound, there would be no purpose in the legislature’s stating an effective date in any act changing the law as to punishment. The General Assembly stated its intention as to the application of the Criminal Code and of prior law in Ark. Stat. Ann. § 41-102 (Repl. 1977). Pertinent provision of that section are:

(1) The provisions of this Code [§§ 41-[ XXX-XX-XXXX ]] shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof.
(3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense.

Cases cited by petitioner such as, Bell v. Maryland, 378 U.S. 226, 84 S. Ct. 1814, 12 L. Ed. 2d 822 (1964), in which a statutory change, abolishing the crime of which the petitioners or appellants had been convicted, became effective before the conviction became final; Litsey v. District Court, 565 P. 2d 1343 (Colo. 1977) in which the legislative intent as to the application of the new law to pending cases and convictions under the old law is not stated; and In re Estrada, 48 Cal. Rptr. 172, 408 P. 2d 948 (1965), in which the amendatory act became effective before the trial of the accused, as inapposite.

In Hernandez v. State, 109 Tex.Crim. 603, 6 S.W. 2d 748 (1928), the court treated a situation similar to that involved here, and held that when an amendatory act lessening or ameliorating punishment for the offense of murder expressly provided that an offender might be proceeded against and punished for an offense committed prior teethe effective date of the amendatory act under the law as it existed prior to the effective date of the amendatory act, the trial court properly instructed the jury as to the prior law on punishment for murder. This is the correct and appropriate rule as we see it. See also, United States v. Fiotto, 454 F. 2d 252 (2 Cir.), cert. den. 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed. 2d 117 (1972); State v.Rose, 156 W.Va. 342, 192 S.E. 2d 884 (1972); Ex parte Faltin, 31 Ariz. 465, 254 P. 477, 55 ALR 436, cert. den. 275 U.S. 522, 48 S.Ct. 22, 72 L.Ed. 405 (1927). Nearly all, if not all, of the authorities on the subject have recognized that the question is one of legislative intent. See also, State v Blunt, 197 Neb. 82, 246 N.W. 2d 727 (1976). That intent was clearly expressed by the Arkansas General Assembly. It would have been improper for the trial court to have followed the new act in Neal’s case.

This leaves only petitioner’s ground No. 1, according to our numbering. Inadequate representation by counsel is a ground for postconviction relief, where there has not been an adequate opportunity to raise the question prior to direct appeal. Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463. Errors, omissions, improvident strategy or bad tactics on the part of counsel do not require an evidentiary hearing on an allegation of ineffective assistance of counsel or justify postconviction relief from a sentence. Clark v. Stated 255 Ark. 13, 498 S.W. 2d 657. The petitioner must first show prejudice by the alleged incompetence of counsel. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1. The question presented on an evidentiary hearing is whether the petitioner has shown by a preponderance of the evidence that the acts or omissions of this attorney resulted in making the proceedings a farce and mockery of justice shocking to the conscience of the court. Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668. An evidentiary hearing on the question is not required when the allegations of ineffectiveness relate only to matters ordinarily within the realm of counsel’s judgment. Leasure v. State, supra.

The state concedes that Neal is entitled to seek postconviction relief on the ground of ineffective assistance of counsel. We are limited to the allegations of the petition in determining petitioner’s entitlement to a postconviction relief hearing. Stanley v. State, 258 Ark. 480, 527 S.W. 2d 613. The allegations set out in the petition itself as to ineffective assistance of counsel were that Neal’s court-appointed counsel did not:

(1) adequately prepare his defense
(2) object to the introduction of evidence
(3) appropriately advise Petitioner concerning his plea of not guilty by reason of insanity
(4) offer adequate evidence to prove Petitioner’s case
(5) cross-examine vigorously
(6) present effective opening or closing arguments, or
(7) otherwise provide Petitioner the standard of performance that was his constitutional due.

The specific allegations under these headings, gleaned from appellant’s memorandum, are:

(1)
Counsel made no substantial investigation of Neal’s contemporary mental condition and no investigation of possible mitigating circumstances.
(2)
Counsel inexplicably filed a motion to withdraw a motion to suppress evidence which had been filed in Neal’s behalf by the public defender; did not challenge the voluntariness of a confession by Neal; did not object to the testimony of one Charles Landis, an inmate of Tucker penitentiary, that Neal admitted he committed the murder.
(3)
None.
(4)
Counsel did not introduce evidence that Neal’s confession was obtained as a result of a threat that he would “burn”, or a statement of appellant’s accomplice who testified in the case; failed to ask Mrs. Patricia Youngdahl, a psychologist, who had testified that Neal was mildly mentally retarded, whether Neal had a diminished mental capacity so that he was unable to tell right from wrong, in spite of the trial judge’s statement that such evidence would be considered; failed to recall Warren Carpenter, a school teacher who had testified that Neal had been aggressive and uncommunicative, for examination on the question of Neal’s diminished mental capacity; failed to advocate a defense of diminished mental capacity, to ask for an instruction thereon or to question any witness pertaining to Neal’s diminished mental capacity; failed to ask Dr. McAlister, an expert witness for Neal, about the results of I.Q. tests administered to Neal, the extent of Neal’s mental retardation, the extent of Neal’s brain damage, the details concerning his brain damage or the mental retardation associated with this damage; failed to ask Mrs. Neal any questions concerning Neal’s susceptibility to influence by others; failed to offer any witness to testify on the essential element of Neal’s insanity defense, i.e., to indicate that Neal did not know that his acts during the crime were wrong or that Neal acted under mental duress; and failed to research or offer a substantial defense on any theory of mitigation, offering only testimony of a psychologist to the effect that Neal was mentally retarded.
(5)
Counsel failed to cross-examine the witness Landis as to his identification of Neal as having been known to him as David Nichols or Dr. Holman, a psychiatrist, about an intelligence test given Neal by another doctor or about the basis of Dr. Holman’s opinion that Neal was not mentally retarded to the extent that he did not know right from wrong.
(6)
Counsel, in closing argument, admitted that he had never seen or heard of a more brutal, merciless murder, that it was more in the form of an execution, that it did not matter who fired the shots, that the only possible conclusion was that Neal was not guilty by reason of insanity because no sane person would have done this act or even participated in it. In the penalty stage, counsel’s response to the state argument, that none of the statutory mitigating circumstances existed, consisted of approximately 200 Words, and concluded with the statement, “I think you have already decided what you are going to do anyway, so go ahead and do it.”
(7)
Counsel failed to examine any of the jurors excused because they stated that they would not impose the death penalty under any circumstances and to request a poll of the jury after it returned a verdict finding Neal guilty of capital felony murder. Counsel moved to change petitioner’s plea, to not guilty by reason .of insanity.

None of the specific allegations considered separately, if true, would justify vacation of the sentence. Perhaps when considered collectively they amount, at the most, to errors, omissions, improvident strategy, or bad tactics. Counsel is presumed to be competent until the contrary is shown. Failure to obtain a desiréd verdict is not the test on which effectiveness of counsel is judged. In a retrospective review of the record of any trial, any lawyer, including trial counsel, can speculate that one thing or another could, and perhaps should, have been done differently. Still, petitioner’s allegations, considered collectively, warrant our granting permission to petitioner to apply to the trial court for relief under Rule 37 oh the basis of the specific allegations of ineffective assistance of' counsel enumerated above. In all other respects, permission to proceed under Rule 37 is denied.

Petitioner’s request that we appoint an attorney to represent him in the proceedings in the trial court is denied. The matter of appointment of counsel is for the trial court.

Mays, J. concurs.

      Separate opinion, concurring in part and dissenting in part. 438 U.S. 586, 98 S. Ct. 2981, 57 L. Ed. 2d 1010 (1978).


author:
John A. Fogleman, Chief Justice.
      Richard L. Mays, Justice,

text:
    Larry SHEPHERD v. STATE of Arkansas
    CR 80-108
    605 S.W. 2d 414
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Larry Shepherd was found guilty of sexual abuse in the first degree in violation of Ark. 'Stat. Ann. § 41-1808 (Repl. 1977). The alleged victim was Velma Jean Sims, aged eight years, who was a neighbor’s daughter, placed under Shepherd’s supervision by her mother at the time of the alleged offense. Shepherd was also found guilty of the rape of Kelley Shepherd, his daughter, who was under the age of eleven years. The verdicts of guilty were rendered by a jury after the charges had been joined for trial. Shepherd was sentenced to five years’ imprisonment for sexual abuse of the neighbor’s daughter and life imprisonment for the rape of his daughter, pursuant to the verdicts rendered. The sentences are to run concurrently. Shepherd argues only two points for reversal. They are:

I
THE IMPOSITION UPON APPELLANT OF A LIFE SENTENCE BY A JURY EXERCISING STANDARDLESS DISCRETION VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW AND HIS RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
II
IT WAS PREJUDICIAL ERROR TO ALLOW THE PROSECUTOR TO IMPREACH APPELLANT’S EXPERT WITNESS BY READING FROM A TEXT THAT WAS NOT ESTABLISHED AS AUTHORITATIVE.

It is difficult to state the basis of Shepherd’s argument on this point with any degree of exactitude. As we understand the argument, he does not contend that the imposition of the sentence was cruel and unusual punishment. Shepherd does not contend that the applicable statute, Ark. Stat. Ann. § 41-1803 (Repl. 1977) is unconstitutional on its face because it does not establish guidelines for the exercise of a jury’s discretion. He does argue, however, that he was denied due process of law under the Eighth and Fourteenth amendments to the Constitution of the United States by the imposition of a life sentence by a jury exercising “standardless sentencing discretion.” The gist of the argument seems to be that the statute, Ark. Stat. Ann. § 41-1803, establishes no degrees of the crime of rape, the definition of which covers a varied range of acts, and that the range of punishment for any of these acts, under Ark. Stat. Ann. § 41-901 (1) (a) (Repl. 1977), i.e., not less than five years, nor more than 50 years, or life imprisonment, is so wide that it is necessary that the jury be given standards to guide it In its sentence determination in order that the minimal due process requirements be met by minimization of the risk of wholly arbitrary and capricious action by the jury in fixing punishment in any particular case. Specifically, appellant argues that he was denied minimum due process guaranteed him by the Eighth and Fourteenth Amendments through the imposition of a life sentence in this case, because of the following: no permanent injury, either physical or psychological, was done to the victim, Kelley Shepherd, his eight-yeár-old daughter; that no force or threat of force was involved; that acts similar to those of appellant were performed on Kelley by boys so young that they could not be held criminally responsible; appellant had no prior criminal record, but had a past history of “mental and sexual illness” and a diagnosis of' “passive dependent character disorder” for which he had sought treatment, at a time when he was so despondent and remorseful that he had requested castration as a solution to his problem; appellant had voluntarily continued treatments for two years up until April, 1979, when treatment was terminated because the treating physician felt that he had resolved his problem; appellant had a sincere desire to remedy his disorder, as evidenced by his expression of a desire for continued treatment at the time he was sentenced; appellant, since September, 1978, had been in consultation with a 'SCAN employee, who had been apprised of thé fact that appellant, as a child, had been the victim of sexual attacks by his uncle; and appellant will not be eligible for parole unless sentence is first commuted to a term of years by executive clemency.

Before we treat the basic due process question, we point out that we find no merit in some of appellant’s factual premises. We find no basis for the contention there is no evidence Kelley Shepherd has suffered any psychological injury. We have no reason to relate the revolting evidence in detail, but we cannot comprehend the argument that there was no basis for a finding of psychological injury' to an eight-year-old female, by reason of the acts of her 39-year-old father. There was testimony that he would talk her and her eight-year-old girl friend into putting on “strip acts” in the presence of boys under 13 years of age; would, at least permit, if not encourage some of these boys to disrobe on some of these occasions, and not only fondle his child about her private parts, but lay on top of her, put his “woo-woo” in her and move up and down, all in the presence of her girl friend and the male children, who, in his presence, sometimes did the same thing he did. It is also difficult to find any mitigation in the fact that Larry Shepherd observed, permitted and perhaps encouraged the male children to engage in intercourse with his daughter.

The details of appellant’s “mental and sexual illness” and the details pertaining to his treatment were related to the jury in considerable detail. It was no doubt considered by the jury, even though no instruction on mental illness was given or requested. The absence of violence does not always affect the strength of society’s interest in deterring a particular crime or in punishing a particular criminal. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed. 2d 382 (1980). Certainly, society has a considerable interest in deterring crimes of this sort and in punishing one who commits a crime so vile as this.

Appellant complains that the jury was given no instructions or standards to guide its sentencing discretion. He is really in no position to complain on this point; he asked for no instruction giving any guidelines. As a matter of fact, appellant’s entire argument is made for the first time on appeal. We find absolutely no objection to the instructions given, or to the verdict form submitting the question of the sentence to be imposed by the jury. The trial judge specifically asked if there were any requests for additional instructions or objections to instructions given, which included the verdict forms later submitted. Appellant’s attorney answered in the negative. The only motion for a directed verdict was based upon the alleged failure of the state to prove the time of the offense with sufficient certainty. This motion was properly overruled. We do not consider issues raised for the first time on appeal, even though they are potentially of constitutional magnitude. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622. This rule also applies to verdict forms, instructions given and instructions not requested. Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3; Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18; Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463; White v. State, 266 Ark. 499, 585 S.W. 2d 952. See also, Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223.

We do not hesitate, however, to say that we do not agree with appellant that a sentence to life imprisonment is so unique that legislative guidelines for the exercise of a jury’s discretion in imposing it are mandated by the due process requirements of the Eighth Amendment to the federal constitution imposed upon the states by the Fourteenth Amendment. In this respect we totally disagree with Rogers v. Britton, 476 F. Supp. 1036 (E.D. Ark., 1979), now pending on appeal to the Eighth Circuit Court of Appeals. We adhere to the views previously expressed by us in the same case in Rogers v. State, 265 Ark. 945, 582 S.W. 2d 7. There we found no requirement that a jury be given guidelines for the imposition of any sentnece in any case other than one in which the death penalty may be imposed. Although the question addressed in Rummel v. Estelle, supra, was whether imposition of a life sentence in that particular case constituted cruel and unusual punishment, we find some support for our position in the ■statements in the opinion in that case that decision of the United States Supreme Court applying cruel and unusual punishment standards to capital cases are of limited assistance in deciding the constitutionality of the imposition of the sentence of life imprisonment in the case before it. That court went on to say that, given the unique nature of the punishments considered in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), [also relied upon by appellant] and in the death penalty cases, one could argue, without fear of contradiction by any decision of that court, that for crimes classified and classifiable as felonies and punishable by significant terms of imprisonment, the length of the sentence imposed is purely a matter of legislative prerogative. Even though appellant quoted from Rogers v. Britton, supra, on the matter of disproportionality of a sentence, we do not interpret his argument as asserting that the imposition of the sentence in this case is unconstitutionally disproportionate to the nature of the offense. If we did, it would be foreclosed by Rummel.

II

Appellant called Dr. Edwin White, a psychiatrist who had treated him previously. This doctor expressed the opinion, as an expert, that it would be very unlikely that appellant would risk penetration of any child because of a passive dependent character disorder and a fear of being homosexual. On cross-examination, Dr. White said that he had used the term pedophilia in his diagnosis of appellant. When asked to define the term, the witness replied: “I inters pret pedophilia as directing sexual drives toward children.” When asked, Dr. White had said that he was familiar with a book by a Mr. Coleman, entitled “Abnormal Psychology, Modern Life.” When he was asked if he recognized Coleman as an expert in his field, Dr. White said that he recognized Coleman “as an expert editor who compiles information from varied sources, and is considered reliable.” Dr. White agreed with a statement from the book that, in regard to pedophilia, intimacy usually involves manipulation of the child’s genitals, but said that was different from penetration. When the prosecuting attorney started a question as if he were commencing another statement from the book, appellant’s attorney objected on the ground that the state had not established that Coleman was a qualified psychiatrist, the court ruled that the particular witness considered Coleman reliable. The objection was not further pursued and the prosecuting attorney continued the examination from the book, reading a statement that “The intimacy usually involves manipulation of the child’s genitals or in the case of female victims, partial or complete penetration of the vagina,” as a part of the definition of pedophilia. After explaining that there was a great difference between genital to genital contact and penetration and that he had said that it was very unlikely that there would be penetration due to Shepherd’s “passive dependent character disorder,” the doctor was asked, “Isn’t it true that in pedophilia it is not unlikely for someone to penetrate a young female?” He then answered, “That can also be included as a part of the definition.”

Appellant now argues that the objection went to Ark. Stat. Ann. § 28-1001, Rule 803 (18) (Repl. 1979), even though the rule had not been mentioned at the trial. In any event, Rule 803 is a list of exceptions to exclusion under the hearsay rule which is applicable even though the declarant is available as a witness. Under exception (18) a statement in a published treatise on a subject of medicine, or other science or art, established as a reliable authority by testimony or admission of the witness or by other expert testimony or by judicial notice, to the extent called to the attention of an expert witness on cross-examination, is' not excluded from the hearsay rule. The prosecuting attorney did not offer the text or the article on the statements in evidence. Appellant raised the question whether the treatise was established as a reliable authority. We are not advised of the identity of the author of the statements about which Dr. White was asked.' We do know that the reliability of Coleman had been established by Dr. White and -that he did not completely disagree with the statements about which he was asked. He did express at least partial agreement. It seems that an editor, in the sense used here, might well be taken to be one who directs or supervises the policies or contributions of a work of reference, or the like, as the editors of an encyclopedia. Webster’s New International Dictionary, 2d Edition. The reliability of such an editor might lend .some degree of reliability to a treatise edited by him.

The trial judge has considerable latitude of discretion in determining the scope and extent of proper cross-examination, and there is no reversible error unless that discretion is abused. Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965; Hightower v. Sholes, 128 Ark. 88, 193 S.W. 257; Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496. This means that the rules are not inflexible and that there is some leeway for the exercise of sound judgment by the trial judge. Arkansas State Highway Comm’n. v. Cutrell, 263 Ark. 239, 564 S.W. 2d 213. The determination of reliability was for the trial judge. Weinstein’s Evidence, § 803 (18) [02], p 803-248. He has some latitude of discretion in making the determination, where the cross-examination is in good faith. Iverson v. Lancaster, 158 N.W. 2d 507 (N.D., 1968). See also, McCay v. Mitchell, 62 Tenn. App. 424, 463 S.W. 2d 710 (1970); Jeanes v. Milner, 428 F. 2d 598 (8 Cir., 1970). Courts should be especially liberal in allowing full and complete cross-examination of an expert witness giving opinion evidence, either for the purpose of impeaching his credibility or eliciting matter for consideration of the jury in weighing his testimony. Arkansas State Highway Comm’n. v. Dean, 247 Ark. 717, 447 S.W. 2d 334.

Reversible error may not be predicated upon a ruling admitting evidence- unless a .substantial right of a party, such as appellant, is affected. Ark. Stat. Ann. §28-1001, rule 103 (a) (Repl. 1979). In view of the circumstances prevailing here, we are unwilling to say that there was reversible error or an abuse of the trial court’s discretion on this point.'

We find no other rulings of the trial court overruling any objection or denying any motion or request made by appellant that merit any discussion, or amount to prejudicial error.

The judgment is affirmed.

Mays, J., concurs.

Richard L. Mays, Justice,

concurring. Since appellant did not object to the lack of guidelines for controlling the jury’s discretion concerning the imposition of punishment, I agree that the judgment should be affirmed. However, had this issue been raised below, I would hold that appellant’s due process rights were violated by permitting the jurors to impose a life or five year sentence on the same facts without standards to control their discretion. See Rogers v. Britton, 476 F. Supp. 1036 (E.D. Ark. 1979).

      This word is an acronym for Suspected Child Abuse & Neglect.

      Rule 802 is not wholly consistent with Ward v. Lamb, 240 Ark. 850, 402 S.W. 2d 675 or Davis v. Arkansas Best Freight System, Inc,, 239 Ark. 632, 393 S.W 2d 237.