author: J. Fred Jones, Justice.

text:
    J. Ernie GASKIN v. STATE of Arkansas
    5433
    450 S. W. 2d 557
    Opinion delivered March 2, 1970

      Thorpe Thomas & J. Roy Finch, Jr., for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

J. Ernie Gaskin was president of Universal Securities Corporation and was engaged in the stock and bond brokerage business in Arkansas. He employed Bob Scott and Scott’s former brother-in-law, Mr. Hanford, as security salesmen. The prosecuting attorney of Lee County, Arkansas, filed fourteen separate felony informations in circuit court against J. Ernie Gaskin charging him with fourteen separate offenses of unlawfully and willfully causing to be offered and sold to O. V. Woodrome, O. N. Stivers, B. S. Rushing, Dr. Mac McLendon, Ruebin White, Jewell White, Ray and Dan Keating, Farmers Gin Company, J. C. and Ruby Neighbors, Charles Earnest Flowers, H. T. Sisk, W. Curtis, Irma Hickerson and Miller Lumber Company unregistered securities, consisting of Americana Motor Inn stock, knowing that the stock was not registered as required by §§ 7 and 21 (a) of the Arkansas Securities Act of 1959, as amended. Gaskin and Universal dealt in the stocks of other corporations but only Americana Motor Inn stock is involved in this case, so all reference to instruments or transactions pertaining to stock or sales of stock, as used herein, refers to Artiericana Motor Inn stock unless otherwise indicated. The cases were consolidated for jury trial and Gaskin was found guilty on all counts except in case No. 6787, pertaining to the alleged sale to Farmers Gin Company. Gaskin was sentenced to one yean in the penitentiary on each of the thirteen convictions. He was fined $5,000 on each of twelve counts and $1,000 on one count. Judgment was entered .on the verdict and on appeal to this court Gaskin relies on the following points for reversal:

“The evidence is insufficient to support the verdict.
The State and Federal Constitutional rights of this defendant have been violated under the Fifth and Fourteenth Amendments to the Constitution of the United States.”

This is the second appearance here of this case on appeal, and for a clearer understanding of [he disposition we now make on this appeal, we deem it necessary to set out in some detail the disposition we made of the matter on the prior appeal. On the prior appeal, Gaskin v. State, 244 Ark. 541, 426 S. W. 2d 407, we remanded for a new trial. Gaskin did not contend that the stock was registered but he contended then, as he does now, that the stock did not have to be registered because he had obtained an exemption under § 14 (b) of the Act, which exempts (upon certain conditions) “any transaction pursuant to an offer directed by the offeror to not more than twenty-five (25) persons.” Ark. Stat. Ann. § 67-1248 (b) (9) (Repl. 1966). At the first trial the State attempted to anticipate and rebut Gas-kin’s expected defense by proving that Gaskin had not complied with rules governing what we there called “the 25-offerees exemption.” At the first trial the Securities Commissioner testified for the State that his department had adopted a rule requiring an applicant for that particular exemption to file a list of the names of the 25 proposed offerees “so we will know who they are.” It was then shown that the names of the fourteen purchasers referred to in the informations against Gas-kin were not included in the list of 25 names that Gas-kin had filed in obtaining the exemption for Americana corporate stock. Upon that proof Caskin was ~ found guilty as charged on all counts.

Section 21 (b) of the Act [Ark. Stat. Ann. § 67-1255 (b)] provides that a violation of any authorized rule or order of the Commissioner is a misdemeanor, whereas § 21 (a) of the Act [§ 67-1255 (a)] provides that a violation of the statute is a felony. At his first trial Gaskin was charged and convicted of felonies in the selling of unregistered securities in violatioh of the statute, but oh evidence that would only support convictions for" misdemeanors in violating the rules of the Commission in selling stock to persons other than those named in the exemption list of 25 purchasers. We' reversed and remanded for a trial on evidence pertaining to the felony charges. The question was not whether sales were made to individuals who were not on the exemption list. The question was not whether those on the exemption list actually purchased any stock at all, as indeed the most of them did not. The question was whether Gaskin caused to be sold unregistered stock to the individuals he was accused of selling it to, and whether those individual sales were transactions pursuant to offers directed to more than 25 persons.

We are not concerned on this appeal with whether Gaskin caused stock to be sold to any single one, or all of the 25 individuals named in the list he filed with the Commissioner. We are concerned only with two questions. The first question pertains to whether there was any substantial evidence to support the jury finding that Gaskin was guilty of causing unregistered stock to he offered and sold to the individuals as charged in the informations. There is more than substantial evidence to support the jury finding on this point. The next question is whether any of the sales with which Gaskin was charged and convicted were exempt from registration. For an answer to this question the State offered disconnected facts of such variety and nature that each has lost its individual identity as substantial evidence, but becomes submerged and lost in the profusion of an unidentifiable whole.

The exemption as to 25 purchasers was granted, or became effective, on February 7, 1965. The record shows that prior to February 7, 1965, stock was sold to the following individuals on the dates indicated: Mrs. Zack Brooks, January 8, 1965; J. B. Bryant, January 19, 1965; Stanley Bosnick, January 26, 1965; Grover B. Márkham, January 27, 1965; W. P. Mixon, January 27, 1965; Charles E. Moore, January 30, 1965; Sandra Lea Stivers, January 30, 1965; Corinne or O. N. Stivers, January 30, 1965; Elgan C. Robertson, February 4, 1965; H. W. or Zola Wilson, February' 5, 1965; W. M. Cook, February 6, 1965; Irma Hickerson, February 5, 1965; O. V. Woodrome, January 29, 1965; H. T. Sisk, January 29, 1965, and Charles Flowérs, February 4, 1965. Of this group of fifteen purchasers, Gaskin was only charged with causing unregistered securities to -be sold to five of them, Woodrome, Stivers, Sisk, Hickerson and -Flowers. So we have no hesitancy in affirming the trial court judgment as to these five counts. There is substantial evidence, and in fact no seniblance of evidence to the contrary, that the sale of stock to these individuals comprised unregistered stock and was consummated before Gaskin or his brokerage corporation ever applied for the twentydive purchase exemption.

There is no question that stock was offered and sold to more than twenty-five persons and the evidence is clear that the stock was worthless. The evidence is clear that the money and checks given in payment of stock were turned over to, and received by, Gaskin, and that the purchase money paid was never refunded to the purchasers as ordered by the Security Commissioner. We do not try law cases de novo on appeal, but can only examine the record in a criminal case for a determination of whether there is any substantial evidence to sustain the charge upon which the conviction rests. Gaskin was charged with unlawfully causing to be offered and sold certain specific shares of unregistered stock to certain specific individuals, and the burden was on the State to prove the charges made. On this appeal we are confined to an examination of the record for substantial evidence that Gaskin did cause to be unlawfully offered and sold the specific unregistered shares óf sjtock to the specific individuals alleged in the informations and as found by the jury.

By the simple process of writing a letter and paying $10 to the Securities Commissioner under § 67-1248 (b) (9), supra, Gaskin was able to exempt worthless motel stock from the provisions of the Securities Act in relation to “any transaction pursuant to an offer directed by the offeror to no more than twenty-five persons.” The record in this case is not clear at all whether the specific sales to the specific individuals for which Gaskin was charged and convicted, were within or without the twenty-five sale exemption. The problem is obvious, if there had been proof of twenty-five specific sales (exempt under the Act because of the' notice) and then the alleged and proven thirteen additional sales, the record would sustain all thirteen convictions, but the record is woefully inadequate in this area.

As to sales subsequent to February 7, 1965, the record does not clearly distinguish between subscription agreements and stock certificates. The record does indicate, as testified by Commissioner Jones, that subscription agreements were signed subsequent to February 7, 1965, by John Wesley or Edna Pauline -Hart, Alvis Graham, Jr., Nancy Helen Collins, Courtney Langston, Ronald M. or Lois H. Boccarossa, Odie Miller, Joann Carson, Frank Miller, Nell Allen and Howard Taylor. Richard Wofford testified that he was bookkeeper for Universal Securities Corporation, of which Ernie Gaskin was president during 1965; he identified State’s exhibit No. 7, which is a group of stock agreements, and testified that they were brought to the Little Rock office by the salesmen, Mr. Hanford and Mr. Scott; that they were given to Mr. Gaskin and passed on to Wofford. He testified that upon receipt of the subscriptions he would issue the stock certificates and that the money for the certificates 'was turned over to Mr. Gaskin. He says that to the best of his memory he issued 21 certificates. He says that according to the record of stock certificates kept by the'Universal Securities Corporation there were '58 certificates issued, and that this would indicate that someone else issued some of the certificates, or that he was in error in testifying that he issued only 21.

The evidence is not clear as to where the thirteen specific sales upon which Gaskin was convicted fit into the 58 certificates issued from the corporate stock Certificate book. Did the thirteen sales for which' Gaskin was convicted fall within the first 25 exeippt sales, or the remaining 33 sales not exempt? There is no way we can resolve this question from the record before us except by dates on agreements and certificates arid assumed consecutive certificate numbers, and this, we hold, does not constitute substantial evidence to sustain a felony conviction.

Much of the testimony offered by the State as to solicitation was vague and indefinite and at the most amounted to circumstantial evidence of a very weak nature. As examples, John Tap Palmer testified that he remembers when the stock was being sold in the area for the purpose of constructing a motel. He says that he was contacted and solicited to buy some of the stock and he believes this occurred in the spring of 1965 at a time when advertisements were being run in the newspapers. He thinks he knew one of the persons who contacted him in regard to the stock. He did not buy any stock and he never does say who the person was who contacted him in regard to the stock. Lyde Benson testified that he recalls the time when there was community talk of building a motel in Marianna. He says he was contacted in regard to the motel but does not know who contacted him; that the person who did contact him held himself out and purported to be, a representative selling stock in the motel. He does not remember whether the name “Americana Motor1 Inn” was mentioned or not. He remembers it was in the spring of the year, but does not remember which year. He says it was four or five years ago. He does not know where the man was from who contacted him nor does he know who he represented. He did not buy stock. Ellis Evans testified that he remembers the time when there was the proposal to build a new motel in Marianna. It was in the spring but he does not remember the date. He thinks it was 1965. He says someoné offered to sell him stock in the motel but that he does not know who it was that called on him. He did not buy stock and does not know what company the salesman who offered to sell the stock represented. Paul Benham testified that he remembers when there was a proposal to build a new motel in Marianna. His father owned the land on which the proposed motel was to be built. He testified that Mr. Gaskin solicited him to purchase some stock. He did not buy any of the stock, but his father bought 250 shares and his mother bought 250 shares. His father is Paul Benham, Sr. His mother was issued stock certificate Ño. 19, and his father was issued No. 20 (certificates not in evidence). Billie Gerard testified that he remembers when “the people of Marianna were talking about building a motel.” All he remembers about it was that if was to be at the “Y” of Highways 1 and 79. He remembers seeing a sign at the spot advertising the future motel. He says that he was contacted to buy stock in the motel, but does not remember when it was. He did not, at the time, know who contacted him, but does know now. He recognized the salesman as being the gentleman in the blue suit sitting on the back row in the courtroom, but there is no evidence in this record as to what person on the back row had on a blue suit. It was brought out, however, that as between Agents Hanford and Scott, one was short, the other taller, and that witness Gerard was referring to the taller one.

It is difficult to follow the State’s trial strategy through the record in this case. After finishing with the witnesses on solicitation, the State proposed to call witnesses who were not “prosecuting witnesses in the sense that none of the sales concerned them except to show that they were people that bought.” As examples of the proof offered under this category of witnesses; and as indicative of the evidence from which we must determine whether or not there is substantial evidence to sustain the convictions, J., B. Bryant testified that he signed a stock purchase agreement on January 19, 1965, agreeing to purchase 5,000 shares of Americana Motor Inn stock. He agreed to pay for the shares in a trade of other stock to Mr. Gaskin. E. M. Collins testified that he subscribed to 500 shares under date of April 20, 1965. He paid for the stock with a check and was issued stock certificate No. 40. Stanley Bosnick subscribed to 1,000 shares on January 26, 1965, and paid $2,000 by check. He purchased the shares from Bob Scott. He was issued stock certificate No. 10, and the stock certificate was dated February 6, 1965. Gaskin was not charged with selling unregistered stock to Bosnick. Dr. Rutledge testified that he recalls an effort to build a motel out at the “Y” north of Marianna, and remembers the sale of stock in regard thereto. He believes that it was in 1965. He was contacted by Mr. Gaskin about purchasing some motel stock, but did not púrchase any. A. C. Mahan testified that about the 12th of February, 1965, he subscribed to purchase, stock in the Americana Motor Inn Corporation. He testified that he did purchase some stock in the name of Farmers Gin Company in the amount of $200 and was issued a certificate for 100 shares. W. M. Cook testified that sometime during the early part of “February, January, February, March, or along about that time” in 1965, he purchased 500 shares of stock and paid $1,000 therefor. A stock certificate was issued to him on February 6. In answer to the question about when he made the purchase, he answered “Bob Scott,” but he never was again asked and did not testify from whom he purchased the stock. Gaskin was not charged with causing unregistered stock to be offered or sold to Cook. Leon Castling testified that he remembers a drive put on to sell stock and thinks it was in 1965. He says there were several people selling and that he was contacted. He says that the party who contacted him represented himself to be an agent selling stock. He did not purchase any stock. He says that a local businessman, Mr. Huffins, and a person representing himself to be a company representative, came to see him about purchasing stock, but that he did not purchase any. Dr. Mac McLendon testified that on or about the 30th day of April, 1965, he purchased 100 shares of Americana Motor Inn stock for the sum of $200. He says he purchased from Bob Scott and Stan Hanford as agents, and was issued stock certificate No. 46. Dan Felton testified that he does not think he was ever contacted aboht buying stock. Paul Moore testified that he remembers seeing Ernie Gaskin around Marianna in the spring of 1965. He says that he was not offered any stock but was asked if he was interested in buying some stock. He does not know the name of the company the stock inquiry was made about. Bob Willis testified that he remembers talks and rumors about the plans to build a motel north of Marianna. He does not remember whether that was in 1965 or not. He says he was never contacted about buying stock. O. V. Woodrome testified that on or about the 19th day of January, 1965, he entered into a stock purchase agreement for 500 shares of Americana Motor Inn stock for $1,000. He says that he purchased the stock from Bob Scott and made his check in payment payable to Universal Securities Corporation. H. F. Sisk testified that on or about the 29th day of January, 1965, he purchased 500 shares of Americana Motor Inn stock for $1,000. He says the salesman was Bob Scott, and that he made his check, dated January 29, 1965, payable to Universal Securities Corporation for $1,000. On cross-examination Mr. Sisk testified that he was issued a stock certificate dated February 6, 1965. O. N. Stivers testified that on or about the 30th day of January he purchased 100 shares of Americana Motor Inn stock by purchase agreement dated January 30, and that he purchased it from Bob Scott. He. says he made his check payable to Universal Securities Corporation, and that stock' certificate No. 26 for the 100 shares was issued to him. He says that three separate stock certificates were issued to him (one to his wife, Corinne, and one to his daughter). Charles E. Flowers testified that on February 4, 1965, he agreed to purchase 250 shares of motel stock for $500. He says that he paid for this stock on February 4, 1965, by check made payable to Universal Sqeurities Corporation. He says stock certificate No. 16 was issued to him for 250 shares under date of February 6, 1965. W. F. Curtis testified that he purchased 150 shares on April 20, 1965, from Mr. Scott and Mr. Huffins. He said that Mr. Scott did the selling and that he gave a check in payment to Mr. Hanford. Roy Lee Keating testified that on or about the 23rd day of April, 1965, he purchased 100 shares of Americana Motor Inn stock. He says that he paid for the stock and was issued stock certificate No. 43. The date of the stock purchase agreement was April 23, 1965, and the stock certificate was dated July 29, 1965. Reubin White testified that on April 29, 1965, he entered into an agreement to purchase 250 shares of stock for $500; he says that he paid for this stock with á check dated April 29, 1965, payable to Universal Securities Corporation, and that he was issued stock certificate No. 25 for the 250 shares. Mr. White testified that -also oñ April 29, 1965, his wife, Jewell, entered into an agreement to purchase 1,250 shares- for the purchase price' of $2,-500; that the agents for the seller were Stanley Han-ford and Bob Scott, and that she paid for the stock with check and was issued certificate No. 45. J: C. Neighbors testified that in May, 1965, he purchased 250 shares by agreement dated May 6, and that he paid for the shares by check made payable to Universal Securities Corporation. Muriel Webster testified that on or about April 30, 1965, the Miller Lumber Co. purchased 2,000 shares and paid for the stock with check in the amount of $4,000 made payable to Universal Securities Corporation. Charles Moore testified that he entered into a stock purchase agreement dated January 30, 1965, under which he agreed to purchase from Bob Scott 50 shares of stock in the amount of $100. He says that he paid Bob Scott $100 for the 50 shares by check. He says the check was made out, he thinks, to Universal Securities Corporation, and that he handed the check to Scott. He says the check was dated January 30, 1965. Wesley Hart testified that he agreed to purchase 375 shares of stock from Bob Scott. He says he agreed to trade Investors Equity Security stock for Americana Motor Inn stock instead of paying cash. Paul Lenord Wilson testified that his father, Harvey W. Wilson, purchased stock in the amount of $500 which became part of his estate.

We hold that there is ample and substantial evidence to sustain Gaskin’s conviction on five counts for causing unregistered securities to be sold to Woodrome, Stivers, Flowers, Sisk and Hickerson in cases Nos. 6759, 6781, 6789, 6790 and 6792. The judgments on these five counts are hereby affirmed.

As to the remaining convictions on the sales to B. S. Rushing, Dr. Mac McLendon, Ruebin White, Jewell White, Roy Lee and Dan Keating, J. C. and Ruby Neighbors, W. Curtis and Miller Lumber Co. in cases Nos. 6782, 6783, 6784, 6785, 6786, 6788, 6791 and 6793, we are unable to find substantial evidence in the record that the sales in these cases were in excess and in addition to, the 25 sales exempted by the Commissioner. The judgments on these eight counts are reversed.

The State argues that the list of 25 names filed with the Commissioner does not operate as an exemption until and unless the reasons set forth in the application are true, and are in good faith carried out. We do not so interpret the statute. Such interpretation would in effect place the accused in the position of being forced to prove his innocence to avoid conviction, rather than the State being required to prove him guilty before obtaining a conviction. We find no merit to the argument that Gaskin was given a greater sentence at the second trial than at the first. (See Fuller and Walton v. State, 246 Ark. 681, 439 S. W. 2d 801), certiorari denied November 17, 1969, 90 S. Ct. Reporter 260.

Affirmed in part; reversed in part.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Raymon THOM, Jr., alias Raimounds Vachiers v. STATE of Arkansas
    5471
    450 S. W. 2d 550
    Opinion delivered March 2, 1970

      James R. Hannah, for appellant.

      Joe Purcell, Attorney General; Don Langston, and Mike Wilson, Asst. Attys. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Raymon Thom, Jr., alias Raimounds Vachiers, was by information charged with (1) burglary of the Goff Service Station in Beebe; (2) petty larceny of $20 in money from the Goff Service Station; (3) burglary of the Pruitt Grocery Store in McRae; (4) grand larceny in the taking and carrying away of a quantity of groceries from the Pruitt Grocery Store; and since he had been convicted of second degree burglary in Indiana in 1962, and two counts of burglary and one count of grand larceny in Sebastian and Scott Counties, Arkansas, in 1966, the charges here were filed under the habitual criminal statute, Ark. Stat. Ann. § 43-2328 (Supp. 1969). Appellant admitted the previous convictions and upon a jury trial was found guilty upon the counts of burglary and larceny. Pursuant to Ark. Stat. Ann. § 43-23*28(3), the trial court fixed the penalty upon the felony charges at 21 years each, said sentences to run cumulatively to each other.

For reversal, appellant contends that the trial court erred in failing to suppress evidence seized from his automobile without a search warrant; that the trial court erred in invoking Ark. Stat. Ann. § 43-2328(3); that appellant’s sentence constitutes cruel and unusual punishment; and that the trial court erred in giving an instruction on unexplained possession of recently stolen property.

The record shows that Mr. Ben Wall, city marshal of Beebe, Arkansas, observed a white car parked between the tanks and the front door of the Goff Service Station about 4:00 A. M. on March 21, 1969. As the city marshal pulled in behind the automobile to see the license number he noticed somebody inside the station. When his automobile lights illuminated the inside of the station he saw appellant tampering with the cigarette machine. When appellant saw the city marshal he ran out through the grease room overhead door and disappeared behind the station. Although the city marshal gave chase for some 200 yards he was unable to apprehend appellant. The city marshal then notified other law enforcement officials and caused the white automobile to be towed to Baker Chevrolet Co.

Mr. Adrian Woodruff, the chief deputy sheriff of White County, while driving north on Highway 67 business route coming into Beebe, drove by Lemon Street and observed appellant coming out of a fence row onto the street. He immediately recognized him from the description given by the city marshal.

About the time appellant was apprehended by Officer Woodruff, Mr. Tommy Pruitt, a McRae grocer, discovered that his store had been burglarized and a quantity of merchandise (approximately $150 to $170 worth) was missing. The officers in searching the white automobile at Baker Chevrolet discovered a billfold containing a pink slip and title to the car in appellant’s name. In addition there were grocery items in the back seat and trunk of the car which Mr. Pruitt identified as coming from his grocery store and which he valued from $150 to $170.

POINT 1: We find no merit in appellant’s contention that the trial court should have suppressed evidence obtained from the search of the automobile. The Fourth Amendment to the United States Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, . . .” Sometimes an automobile takes on the characteristics of a man’s castle. Other times an automobile takes on the characteristic of an overcoat — that is, it is movable and can be discarded by the possessor at will. If appellant in his endeavors to avoid the clutches of the law had discarded his overcoat to make his flight more speedy, no one would think that an officer was unreasonably invading his privacy or security in picking up the overcoat and searching it thoroughly. In that situation most people would agree that the fleeing suspect had abandoned his coat as a matter of expediency as well as any rights relative to its search and seizure. What difference can there be when a fleeing burglar abandons his automobile to escape the clutches of the law? We can see no distinction and consequently hold that when property is abandoned officers in making a search thereof do not violate any rights or security of a citizen guaranteed under the Fourth Amendment.

POINT 2: Here appellant argues that for purposes of imposing sentence under the habitual criminal statute, appellant should have been sentenced under sub-section 2 of Ark. Stat. Ann. § 43-2328 instead of sub-section 3; He then argues that we should adopt the reasoning of State v. Simpson, (Wash. 1929) 277 P. 998, which holds that a conviction under a habitual criminal statute on an information containing two or more counts arising out of acts committed simultaneously should amount only to one offense. The State on the other hand argues that we should follow those states holding to the contrary. Under the record here we find that we need not answer either argument because of the nature of the record.

The information to which appellant pleaded guilty alleges, “[T]hat defendant was convicted of second degree burglary and sentenced to two to five years in 1962 in the State of Indiana; defendant was convicted of two counts of burglary and one count of g"rand larceny in Sebastian and Scott Counties in Arkansas in 1966 and was sentenced to three years.” It is difficult for us to understand how a person could commit two burglaries simultaneously or commit two burglaries simultaneously in two different counties, even if we could construe the 1966 grand larceny charge as growing out of a simultaneous act committed in one of the burglaries. Consequently we hold that the trial court properly applied Ark. Stat. Ann. § 43-2328(3) under the evidence shown in the record.

POINT 3: It is true that under the punishment assessed against appellant it is possible that he may serve 63 years in the Arkansas State Penitentiary. We have consistently held that the fact that the punishment authorized in severe does not make it cruel or unusual. It is within the power of the legislature to classify crimes and determine punishment for violations of such classifications, see Blake v. State, 244 Ark. 37, 423 S. W. 2d 544 (1968).

POINT 4: We find no merit in appellant’s argument that the lower court erred in giving an instruction on unexplained possession of recently stolen property. The instruction given has been approved by this court many times, see Bridges v. State, 177 Ark. 1193, 9 S. W. 2d 240 (1928); Threadgill v. State, 207 Ark. 478, 181 S. W. 2d 236 (1944).

Affirmed.


author: Frank Holt, Justice.

text:
    Roy Raymond JOHNSON v. STATE of Arkansas
    5461
    450 S. W. 2d 564

      Opinion delivered March 2, 1970

      Harold L. King, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was sentenced in 1965 to life imprisonment for the crime of rape. Pursuant to our Criminal Procedure Rule No. 1 appellant, through court appointed counsel, has now petitioned the trial court to vacate his life sentence. In written findings of fact and conclusions of law the court denied the petition.

Appellant contends that his incriminating oral admissions were involuntary and, therefore, were inadmissible in evidence. Appellant testified that his admissions were coerced by physical abuse from some of the arresting officers who told him that he must confess, “whether I did it or not.” He claims that he was held four or five days before he confessed and was denied the use of a telephone to call counsel. Appellant maintains he did not commit the alleged offense. The state presented evidence that appellant was arrested at approximately 1 a.m. on October 25, 1962, and placed in the city jail. At approximately 3 p.m. that day the case was assigned to two officers when they reported for duty. According to them, they spent the afternoon investigating the case which included interrogating appellant who denied any complicity in the alleged offense. With consent of appellant and his accomplice, the officers spent several hours searching their respective homes and interviewing witriesses. About 8 p.m. that evening the officers received a radio message from the jail that the appellant and his accomplice had asked to talk with them. These officers testified that the appellant made' an oral confession which was introduced in evidence at appellant’s trial. The officers denied that appellant was subjected to any physical abuse by them or anyone else to their knowledge and that the appellant exhibited no evidence of abuse nor made any complaint to them. One of the officers testified that appellant was permitted to use the telephone before making any admissions. There was no testimony elicited as to the right of the appellant to remain silent, or that any statement he made could be used for or against him, or that he was informed of his rights as to counsel.

In its findings the court correctly stated that the required Miranda warning was not in effect at the time the appellant made his alleged confession. The procedural safeguards underlying the ' privilege against self-incrimination enunciated in Miranda v. Arizona, 384 U. S. 436 (1966) are not retroactive. Gross v. State, 246 Ark. 909, 440 S. W. 2d 543 (1969).

The court further found there was sufficient evidence to convict the appellant without the confession. Even so, the admission of an involuntary confession is considered prejudicial and reversible error although there is other evidence which is sufficient to sustain a verdict. Haynes v. Washington, 373 U. S. 503 (1963). Therefore, this finding is inapplicable to the voluntariness of appellant’s statements.

The trial court also found that the records of the officers in the present proceeding indicate that the confession was valid according to the rules of evidence obtaining at that time. We do not construe this finding as being sufficiently clear and definite. It is our duty as an appellate court to examine the entire record of the proceedings and make an independent determination of the issue of voluntariness of the confession since it is disputed on federal constitutional grounds. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968). There we recognized that the findings of the trial court, while not controlling, are accorded considerable weight in resolving evidentiary conflicts. It appears from our review of the record that there is no evidence the appellant was at any time advised of his rights with respect to silence, counsel, and his privilege against self-incrimination. Although these factors are not necessarily controlling, they are, however, significant in the evaluation of voluntary statements. Haynes v. Washington, supra; Davis v. North Carolina, 384 U. S. 737 (1966). In Harris v. State, supra, we said:

“The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks ‘to the whole situation and surroundings of the accused.’”

Because of the indefiniteness of the finding as heretofore mentioned, we remand to the trial court for either a supplemental hearing or a re-examinatiori and re-evaluation of the present evidence and a more specific and definitive finding that the oral admissions Were or were not voluntary. This was the procedure we authorized in Mitchell v. Bishop, 245 Ark. 899, 435 S. W. 2d 91 (1968).

Upon a review of the entire record we find no merit in the other contentions argued by the appellant.

Remanded for proceedings consistent with this opinion.


author: Carleton Harris, Chief Justice.

text:
    Elgin MARTIN v. STATE of Arkansas
    5455
    451 S. W. 2d 453
    Opinion delivered March 9, 1970
    [Rehearing denied April 13, 1970.]

      Thomas L. Cashion, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Elgin Martin was charged with the murder of his son, James Guice Martin, the killing occurring on December 8, 1968. On trial, Martin was convicted of voluntary manslaughter, and sentenced to three years imprisonment in the State Penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, it is urged that the testimony was insufficient to sustain a conviction, and that the court erred in permitting the state to introduce alleged threats of Martin toward his son, the first, occurring 10 years before the homicide, and the second, occurring about 9 months before this event.

The evidence reflects that, on Sunday evening, December 8, 1968, James Guice Martin and an occasional employee, James Lewis, were at Martin’s shop, located 4 or 5 miles from Wilmar. Late Sunday afternoon appellant went to the shop to see about borrowing young Martin’s tractor to pull a dead mule away from the older man’s premises. The elder Martin asked if he could use the tractor, and was told that he could. Guice and Lewis then went back to Wilmar, Lewis getting out at the washateria. Lewis testified that there were no angry words between the Martins before leaving, but that on the way back to town, Guice Martin said that he was going back and “get things straight.” Appellant testified that, after his son told him he could use the tractor, he left, and walked back to his home, about 500 or 600 yards from the shop, to feed his dogs. While he was so engaged, Guice drove up in his truck, got out, and said, “I’ve got a little deal for you. You’ve been lying to me long enough about that tractor.” He said that the son cursed him, grabbed him by the coat, jerked him around, and said, “You stand up here, ..I’m going to do the talking and you’re going to do the listening.” According to appellant, he was then hit in the 'mouth and knocked down. He further stated that Guice then said, “I’m going to finish you once and for all,” and started back to his truck. It was dark and appellant testified that he (appellant) then ran to his own truck, obtained a shotgun, and “squatted down. He stood there with his flashlight hunting me.” Martin said that he ran east for a short distance, then north over to a road, through another field, and stopped in a lane, traveling in all about a quarter of a mile. “Just as I stopped a flashlight ca^ne on behind .me. It was on and off. I just wheeled around and shot.” The shot was fired with a 12-gauge automatic shotgun, loaded with No. 6 shot. According to officers who shortly thereafter investigated the shooting, Guice was shot in the face and chest, and was lying on his back with" a flashlight beside his left hand. The light was not on. There was no evidence of a struggle, and no weapon was found. The testimony reflected that the shot was fired at a distance of about BO feet, and one of the officers testified that the deceased was struck by at least 150 No. 6 shot, though only one shell was fired. A written statement was subsequently given by Martin to the officers.

Appellant stated that, after his son struck him, and started back toward the truck, he (appellant) thought that Guice was going after a gun, “because he always carried a gun in his truck.” Appellant’s testimony • and the statement first made to the officers, differed in one important respect, viz., in the statement, appellant said that, when he fired the shotgun, he did not know who was flashing the light. On trial, he testified that he knew Guice was the person with the flashlight. After the shooting, appellant did not investigate to see whether he had hit the son, but instead, went to his daughter’s home, and no one being present, went about two miles to the home of Dale Avery, and told Avery and his wife that he thought he had shot Gúice, but “Go see if I hit him or not.”

Of course, there were no witnesses to the shooting, •bther than appellant himself, but there was certainly evidence to clearly indicate to the jury that the shooting was unnecessary, and not done in self-defense. In the first place, it was established that Guice Martin was not armed, for there was no weapon by the body when the officers arrived on the scene. A search of Guice Martin’s home revealed that the three guns that he owned were all in the house, and there was no gun in his truck. In fact, it was clear from the testimony of appellant himself that he was the only one who endeavored to obtain a weapon. Appellant said that he started to get his knive hut of his pocket, and that was when'- he was struck by Guice. “This had happened before, I had bluffed him'before with my knife and I was going to, try to do it again.” Admittedly, he did not warn his son that he had the gun and not to come closer, and when asked why he didn’t shoot the son in the legs, instead of the face, replied, “I jüst shot. I didn’t even know it was oh him. I just shot to scare him to get on out of the way:” Appellant himself earlier testified, “F just feel like it shouldn’t have ever happened,-wasn’t no use of it.” The testimony was ample to sustain the conviction, and, in fact, coupled with evidence of threats, hereinafter discussed, would have sustained the charge of murder.

As to the second point, Robert H. Martin, 27 years of age, son of appellant and brother of the deceased, testified that, in 1958, when he was 16 or 17 years of age, and Guice was 23 or 24, he heard his father threaten to kill Guice in Wilniar while they were standing in front of the bank:

“Well, he was behind on the alimony and we walked up to him and Guice asked him did he have any money for mother. He said, 'You want if, you come get it,’ and pulled his knife.”

He stated that nothing further happened, and he and Guice went on about their business.

Creóla Reynolds, 32 years of age, daughter of Elgin Martin and sister of the deceased, married, and with two daughters, testified that she lived about 400 yards from her father, and that he had visited with her and eaten supper in her home many times. When asked if appellant Was having any trouble' with Guice, she replied, “As far as I knew, everything was OK at times.” She stated, however; that, about 9 or' 10 months before the killing, while in her home, he said, “If that s — of-a-b--ever lays a. hand bn me, I’ll kill him.” When asked if she thought he was serious, she replied:

“I didn’t know. In my own feeling, the way I felt, in a way I did. I’d get nervous, because I’ve heard that threatening remark many many times.”

The daughter also testified that she was present on the occasion of an argument relating to her father’s agreement to give Guice 11 or 12 acres of his land located near the younger Martin’s shop. Her brother was getting ready to leave for a job away from home, and he wanted to get the deed before he left:

“I was picking strawberries, me and my children. Guice came up and asked him would he have maybe 30 minutes time that morning, being that it had rained and the ground was wet, to go sign and have the papers notarized. He had everything fixed to have them signed and notarized that next morning. He was going to come pick him up and bring him to have them notarized and carry him back. He said, ‘You won’t lose over 30 minutes work.’ He told him, ‘Hell no, I don’t have time:’ That’s all I heard.”

She testified, however, that in the early part of November, at the beginning of the first deer season, her father, Guice, and a man named Mercer were up at the shop engaged in target practice with Guice’s, gun, all firing the gun, and it “looked like everything was just as calm and peaceful as could be.” She also said that, after the death of one of the brothers who was apparently close to his father (and had been killed in an accident), the children told him they would help him as best they could.

Cade Reynolds, husband of Creóla, corroborated the testimony of his wife, relative to appellant’s threat to kill Guice; he also said that Martin added that he should have done it a long time ago.

Martin admitted the altercation with his son in Wilmar in 1958, stating that Guice had walked up and “said he was going to beat hell out of me,” and that he (appellant) had reached in his pocket to get his knife, and told Guice to go on, as he didn’t want any trouble. He also admitted the argument with Guice about fixing up the deed, but denied making the threat testified to by Mr. and Mrs. Reynolds.

Appellant argues that the court erred in admitting the testimony about the threats, and he relies on our case of Billings v. State, 52 Ark. 303, 12 S. W. 574. There, the widow of the deceased was permitted to detail the particulars of a difficulty between the deceased and the killer about 2Yz years prior to the killing, and was further permitted to testify about a conversation with appellant 2 years before. These facts are set out in the opinion, as follows:

“* * # Her testimony was substantially, that at a picnic her husband and one Wilson had a fight; that a few moments after the fight her husband said to one Bostic that he had knocked his brother-in-law, meaning Bostic, down. That appellant, who heard the remark, ran up with a drawn knife, and said, ‘If it’s brothers-in-law you are after, I am here,’ coupled with curses and oaths, at the same time striking at him with the knife. As to the conversation of the appellant with her, she testified, that he wanted to buy her interest in their father’s estate. That she offered to sell for cash, which he could not pay; that she refused to sell on credit. That he then said he would have the land or some man’s hide.”

Billings was convicted of manslaughter, and this court reversed because of the admission of this testimony, stating, inter alia that the conversation of appellant with Mrs. Wallace was ambiguous, if not appearing to whom he intended his threat to apply, and that in view of all the facts, including lapse of time, and no recurring trouble, the testimony was inadmissible. The court specifically stated that it is impossible to say how far back, with respect to time, such testimony would be admissible. A strong argument can be made that the testimony of the threat made 9 or 10 months before the homicide was admissible, and even that the threat 10 years before was admissible, these occurrences tending to show malice. It will be recalled that appellant, in reaching for his knife on the night that he killed the son, mentioned that he had “bluffed” young Martin before with the knife, this apparently being a reference to the occurrence 10 years before.

Likewise, the daughter, in testifying about the threat made to kill Guice, said, “I’ve heard that threatening remark many many times.” Her husband also testified that the father, in threatening to kill Guice, had said that he should have done it a long time ago. It thus appears that, throughout the 10-year period, there may have well been a feeling of animosity on the part of appellant toward this son. However, we need not pass upon this evidence for the reason that it is not deemed prejudicial under the verdict reached by the jury. In Witham v. State, 149 Ark. 324, 232 S. W. 437, in rejecting the argument here advanced, this court stated:

“Appellant next insists that the court erred in permitting Mart Kelt to testify, in substance, that, some six years before the killing, he heard accused say he grudged deceased the ownership of the land, and that some day, in some way, he would acquire it himself. This evidence only tended to establish a motive -for the killing. Any prejudice resulting from the admission of this1 evidence was eliminated by appellant’s ácquittal of murder in either the first or second degree, because motive was not an ingredient of the crime of manslaughter, for which he was convicted, and was. a necessary ingredient of the crimes of which he was acquitted.”

Of course, Billings was also convicted of manslaughter, but it is obvious that the threats made in this instance were specific, and somewhat repetitious, a fact not true in Billings. However, even if the cases are considered as being in total conflict, we might point out that Billings was handed down in 1889, while the opinion in Witham was rendered in 1921. Aside from that, the last holding seems much more logical, and we think the quoted language is apropos in the present case. After all, it could hardly be argued that the jury demonstrated passion or prejudice in giving appellant a sentence of three years for killing his son.

We find no reversible error.

Affirmed.

      Testimony reflected that appellant was advised of his constitutional rights, and signed a waiver, and there is no contention here that the statement was not voluntarily given.

      The deed, sometime subsequent thereto, was executed.

      Appellant also testified that, when this son was killed, Guice and Robert went to the brother’s home, asked him to come outside, and said, “What’s done happened, let it be happened, we're going to be better from now on.”

      If not a reference to that occasion, then yet another time, the two had had trouble.


author: George Rose Smith, Justice.

text:
    Paula Ruth DAVIS v. Milton Dale DAVIS
    5-5194
    451 S. W. 2d 214
    Opinion delivered March 9, 1970

      Paul F. Henson, for appellant.

      W. J. Walker, for appellee.
   George Rose Smith, Justice.

This is a child custody proceeding. The parties were married on November 23, 1967. Their child, a son, was born the following July 7. The couple lived together only a few months in all, with Mrs. Davis making her home at intervals with her parents.

Davis obtained a divorce on March 6, 1969, and, with Mrs. Davis’s consent, was awarded custody of the infant. Davis is a resident of Little Rock, but he has found it necessary to place the child in the care of his parents, who live at Vandervoort, in Polk county. Davis visits his son there on weekends. No one questions the suitability of the home in which the child is being brought up.

On May 13, 1969, Mrs. Davis filed a petition asking that she be awarded the custody of her son, who was then about ten months old. After a protracted hearing the chancellor refused the mother’s request foi a complete change of custody but did direct that she have rather extensive visitation privileges for • two six-week periods each year. The order permits the appellant, during those semiannual periods, to keep the child in her home, where she lives with her second husband. For reversal the appellant insists that she should have been given complete custody of the child and that in any event she is entitled to support money during the visitation periods.

After having carefully studied the testimony we are convinced that its narration would be more harmful than beneficial to everyone in the case. It is enough to say that the undisputed proof — much of which is admitted — discloses such behavior on the part of the appellant, and to some extent on the part of her present husband, as to justify the chancellor in concluding that the child’s best interest would not be served by an award of permanent custody to the mother. Charges and countercharges were freely made by the witnesses for each side. In such a situation the chancellor, having seen the parties and the witnesses as they testified, is in an immeasurably better position to decide the issues than are the members of this court. We cannot say with assurance that the chancellor’s disposition of this case was against the weight of the evidence.

Nor does it appear that the trial judge was demonstrably wrong in not requiring the father to contribute to the child’s support during the mother’s semiannual periods of visitation. It makes no real difference whether we regard those interludes as periods of visitation or as instances of divided custody, for both the fixing of visitation rights and the determination of the amount of child support are matters lying within the sound discretion of the chancellor. Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498 (1959). It must be remembered that such brief absences on the part of the child from his permanent home do not relieve the father from the duty of maintaining that home in readiness for the child’s return. Upon this point we defer to the chancellor’s sound judgment, for we find no manifest abuse of his discretion in the matter.

Affirmed, the parties to bear their own costs.


author: Lyle Brown, Justice.

text:
    CRT, Inc. v. Evelyn DUNN and Lamar Dunn
    5-5200
    451 S. W. 2d 215
    Opinion delivered March 9, 1970

      Shackleford ér Shackleford, for appellant.

      Brown, Compton, Prewett ¿r Dickens, for appellees.
   Lyle Brown, Justice.

Appellant Evelyn Dunn was injured when she lost control of her car as a result, so she claimed, of fuel oil being spilled on the highway from a tanker truck belonging to appellant, CRT, Inc. Evelyn Dunn was awarded damages for personal injuries and her husband, Lamar Dunn, obtained a judgment for his wife’s medical expenses and for his loss of consortium. On appeal CRT attacks the sufficiency of the evidence on liability and challenges the propriety of one instruction.

CRT’s driver, Morris W. Craig, picked up a load of fuel oil at Lion Oil Refinery, El Dorado, around 9:00 p.m. on the night of March 27, 1968. He left the refinery with a load of 5,300 gallons. His destination was Russellville. As Craig drove out the refinery gate he noticed a parked white automobile. That vehicle fell in behind Craig and followed, pulled up beside the tanker and then overtook Craig. The driver of the white vehicle signaled with his lights for Craig to stop but he declined to do so because of the unusual antics of the car. Craig tried to pass the car but the driver of the latter would block him. When the two vehicles passed Wheeling Pipeline Company some other passenger cars pulled in behind the tank truck. When the group of vehicles reached the traffic circle on the northern outskirts of El Dorado, the driver of the white vehicle blocked the road. It developed that the drivers for Wheeling Pipeline were on strike at the time. The men in the passenger cars were watching out for what they called “bootleggers” for Wheeling, that is, those obtaining fuel oil from other refineries to circumvent the effects of the Wheeling strike. It was testified by one of the pickets that CRT’s truck “wore all the earmarks of a Wheeling truck.” Therefore the strikers wanted to make inquiry of Craig relative to his employment, ownership of the truck, and other matters that might determine whether the strikers’ efforts were being thwarted.

The pickets detained Craig for a matter of several minutes, questioning him concerning matters relative to their mission. During that interim some of the numerous pickets were around the sides and the rear of the tanker truck. Craig was not molested and never got out of the truck. He did testify that one of the pickets remarked that Craig was “liable to get hurt.” Craig produced no papers to show his non-connection with Wheeling, and it can be reasoned that he was permitted to leave' under a cloud of suspicion.

From the time Craig left the traffic circle until his next stop, which was forty-three miles north and at the Thornton weight station, a continuous stream of fuel oil flowed from his truck. There is a large valve in the center-rear of the tank and it controls flowage through a pipe that protrudes from under the chassis and within a few feet of the pavement. It is the main control valve on the tank and is used to unload the fuel oil. The valve is worked manually by a wheel which is not locked. It should be noted that most of the oil was spilled in Craig’s lane of traffic, the main exception being in banked curves, where it would sometimes fall near the center line and drift into the opposite lane. When alerted by the inspector at the weight station, Craig discovered that the control valve was wide open. It is not claimed that the valve was defective. In fact, appellant’s proof, which was not rebutted nor seriously controverted on appeal, strongly indicated that the valve was opened by some unknown person or persons at the traffic circle. Unquestionably the jury could have so concluded. The flow of oil started at the traffic circle where a puddle of oil was laid down. Incidentally, the State Highway Department was alerted and its employees began a sand-covering operation on the south end at around two o’clock in the morning.

Appellees, Mr. and Mrs. Dunn, lived near Hampton, which is on the El Dorado-td-Thornton highway and some fifteen miles south of Thornton. Mrs. Dunn left Hampton by car around seven o’clock that morning destined for her work in El Dorado, some twenty-eight miles to the south. She testified that she noticed the oil as she turned on the highway at Hampton; that both lanes of the highway were open and being traveled in good daylight; and that after traveling some twelve miles she overtook and passed a transport truck after some difficulty. She said that after passing that vehicle she shortly entered a curve and there was oil in her lane; that just ahead of her was a pickup truck and the highway department sanding crew with warning flashing lights; that she necessarily applied her brakes and that caused her to start skidding. She lost control and her vehicle crossed the shoulder and came to rest in a ditch.

Appellant first attacks appellees’ evidence as being insubstantial. Was the jury warranted in finding that Craig was put on such notice as would dictate to a driver of ordinary prudence that he should check his rig for vandalism once he was safely away from the strikers? If the answer is in the affirmative, then the evidence was substantial, otherwise not. We have carefully explored the problem posed by the crucial question and have concluded that there was sufficient evidence which would warrant a jury’s finding in the affirmative. Craig’s testimony, and attendant circumstances, are the principal sources of the supporting evidence. Those elements, summarized in the light most favorable to appellees, are these:

From the moment Craig left Lion Oil around 10:00 p.m. he was shadowed by a white car; as they passed Wheeling Pipeline some four more cars of strikers, on signal from the white car, joined in; they tried to stop Craig before he reached the south side of the business district; Craig kept going because he calculated they were strikers and he was apprehensive of what might happen; they apparently made no effort to stop Craig in downtown El Dorado, waiting until they reached the traffic circle on the north side of town, a more secluded spot; there the strikers threw up a roadblock and detained Craig for some twenty or thirty minutes; while one or more leaders engaged him in inquisitorial and accusative conversation, others milled about the truck; one leader remarked that Craig could get hurt; and the fact that his truck bore no identification markings and the refusal of Craig to show his lease papers served to increase the suspicion that he was “bootlegging.”

As previously mentioned, one of the strikers testified that Craig’s rig “wore all the earmarks of a Wheeling truck.” It is therefore not an unreasonable' inference that the strikers concluded that they had spotted a driver who was aiding and abetting Wheeling. The attitude of the strikers toward “bootleggers” was expressed by the witness in this language: “It’s like taking bread out of our mouths.” Undoubtedly Craig found himself in an atmosphere of antagonism. It is also fairly inferable that Craig .never convinced the strikers that he had no' connection with Wheeling.

It should also be pointed out that the outlet valve is opened by the turning of a wheel which is approximately the size of a steering wheel. It is opened and closed by hand and is not locked. It can be operated by a man standing on the ground.

When Craig was asked on cross-examination why! he did not stop and check the truck, he replied that it' was because of the threat that he was “liable to get hurt.” He never did explain why he did not stop when be reached a reasonably safe distance from the encounter. In fact, the jury may have concluded from Craig’s overall actions that his interest in leaving El Dorado far behind him was his exclusive concern. Between El Dorado and the Thornton weight station, Craig lost 4,300 gallons of oil. Of course that represented a very substantial reduction in load, he being' left with only 1,000 gallons. Secondly, at some undetermined point between El Dorado and Thornton, Craig’s motor developed a leak in the oil line. It was first discovered when the truck was stopped at the weight station. “I got back around this side of my truck, and I looked up there at the motor, and oil was pouring out.” Would a reasonably alert driver, losing 100 gallons of fuel oil per mile and operating with a serious defect in his fuel line, not have more timely discovered either or both defects? That is a question the jury could have answered in the affirmative.

Craig testified that the thought never entered his mind that anyone would tamper with his truck. Our interest is directed at what a reasonably prudent driver would have foreseen as likely to have happened because that is the standard by which Craig is to be judged. The jury, by its verdict, decided that the likelihood of some tampering by the strikers was reasonably foreseeable and we cannot say there is no substantial evidence to support that conclusion.

Appellant contends that Mrs. Dunn was negligent and that her conduct was the sole proximate cause of the mishap. It is also asserted that she assumed the risk of her own injuries. Under conflicting evidence the jury answered those questions in the negative and we cannot say as a matter of law that it was error, Mrs. Dunn knew of the presence of the oil, knew it was slick, and observed that it ran over on her side of the highway in the curves. It can be logically argued that a more prudent driver would have exercised more caution with respect to speed and in approaching and passing other vehicles. However, she testified that because of the circumstances she did not exceed fifty miles per hour, which she presumably considered a safe speed under the circumstances. It is true she overtook and passed a transport truck but it is not shown that movement contributed to'cause the accident. Just before she lost control the highway, she said, curved to her right; that about the time she rounded the curve she saw a pickup truck which she judged to be moving rather slowly; that at the same time she observed the highway department sanding crew; and that as a matter of precaution she applied her brakes to slow down and her car skidded into the ditch. Whether in that emergency she was negligent was for the jury. For all we know the jury did find her guilty of some negligence because the general verdict was far less than the amount sought.

With further respect to the argument of assumption of risk, we point out that the evidence shows the highway to have been open to traffic in the usual manner, that there was a normal flow of vehicles, and no evidence of other accidents.

For the error we find in the giving of Court’s Instruction No. 20 we reverse and remand the case. That instruction is as follows:

There was in force in the State of Arkansas at the time of the occurrence a statute which provided:
‘No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway.’ (Ark. Stats. 75-805).
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

The quoted statute is concerned only with the construction and loading of a vehicle. Neither the construction of the vehicle nor the manner in which it was loaded was an issue at the trial. It is seemingly appellees’ theory that the instruction is applicable anytime there is a leakage or escaping of loaded materials from a truck which is traveling on the highway. That fact is not sufficient. There first must be some evidence that the spillage was caused either by the construction or loading.

Since the instruction had no connection with any of the trial issues it must be condemned as being abstract. We have reversed a number of cases for the giving of abstract instructions, particularly in situations where we cannot tell but that the jury verdict was affected by the error. Vangilder v. Faulk, 244 Ark. 688, 426 S. W. 2d 821 (1968); Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959).

Reversed and remanded.


author: Lyle Brown, Justice. George Rose Smith, Justice,

text:
    Clarence Leonard PIERCE, Jr. v. STATE of Arkansas
    5460
    451 S. W. 2d 219
    Opinion delivered March 9, 1970

      David C. Shelton, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Lyle Brown, Justice.

Clarence Leonard Pierce, Jr. was convicted of grand larceny, the separate charges involving the theft of seven blank money orders which he was accused of completing by filling in names and various amounts, and cashing. Pierce here challenges three instructions, the court’s refusal to instruct on petit larceny, the admissibility of in-custody statements, and the sufficiency of the evidence.

Railroad Salvage Company is a partnership conducting a substantial retail business in West Memphis, Arkansas. It operates in two buildings which are connected by an archway. Appellant was hired to work in. the building from which furniture was sold. The other building was a grocery store. On the grocery side of the business, Railroad Salvage engaged in the sale of Travelers Express Checks. These were kept in a separate cash register which was devoted exclusively to the sale of checks. Each check had a separate serial number and they were to be sold in numerical order. In December 1968 Travelers discovered that checks from Railroad Salvage were being cashed out of order. Subsequent investigation revealed that those checks came from the bottom of the stack, that they were filled in for sums ranging from $100 to $120, and on the line for the purchaser’s name to be affixed was the purported signature of Clarence L. Pierce, appellant. The State offered expert testimony that the handwriting was ..that of Pierce. Three persons testified that only they were authorized to sell checks and that they had sold none to appellant. An employee of Red Barn Auction testified that she cashed one of the checks for appellant. Elmer Dye, one of the partners in Railroad Salvage, stated that he received no money for the seven checks, and that Railroad Salvage was compelled by contract to reimburse Travelers for the seven checks which were paid through Travelers’ account. The testimony we have summarized, together with other evidence in the case — if admissible — clearly warranted a conviction.

Point I. It was error to give the court’s instructions four, five, and six.

4.
Whenever the value of the property stolen exceeds, the sum of $35.00 the punishment provided by law is by imprisonment in the penitentiary for not less than twenty-one years.
5.
If the property stolen consists of any bill of exchange, draft, order or receipt or of any instrument whereby any demand, right or obligation shall be assigned, transferred, created or released the money which in any event or contingency might be collected thereon shall be adjudged the value of the article stolen.
Therefore, if you find from the evidence, beyond a reasonable doubt, that the defendant, Clarence Leonard Pierce, Jr., did on or about the 11th day of November, 1968, take, steal and carry away the seven money orders introduced in evidence or any of them, or at any other time within three years prior to the filing of the Information herein, which was on the 22nd day of July, 1969, and did, without authority, complete the execution of the money orders by incorporating therein a face value of more than $35.00 and did by signing same, without authority, collect the face amount thereof from third persons, which money he appropriated to his own use, then and in which event it will be your duty to find him guilty of grand larceny and to fix the punishment at from one to twenty-one years in the State Penitentiary. Unless you do so find, your verdict will be one of not guilty.

The three instructions, read together, are a fair statement of the law applicable to this case insofar as the charges of grand larceny are concerned. Instructions five and six are based on Ark. Stat. Ann. §§ 41-3903 and 41-3906 (Repl. 1964). The first section makes it larceny to steal, among other items, any instrument of writing of value to the owner. The second section is as follows:

Value of written instrument. — If the property stolen consists of any bank note, bond, bill, covenant, bill of exchange, draft, order or receipt, or any evidence of debt whatever, of any public security issued by the United States, or any script or other public security issued by this State or any other State or Territory, or of any instrument whereby any demand, right or obligation shall be assigned, transferred, created, increased, released, extinguished or diminished, the money due thereon or secured thereby and remaining unsatisfied, or which in any event or contingency, might be collected thereon, or the value of the property transferred or affected, as the case may be, shall be adjudged the value of the article stolen.

In essence appellant was accused of taking printed form money orders and by inserting dates, payees, and fixed sums of money, created a cashable instrument, contingent of course upon its acceptance by the one to whom it was presented. According to the testimony the cashing of the instruments created a contractual obligation on the part of Railroad Salvage to reimburse Travelers. In the completed form each of the checks exceeded $35.00. In drafting Instruction Five the court lifted the applicable excerpts from § 41-3906.

Point II. The court erred in refusing to instruct the jury on petit larceny. The general rule is stated in Wharton’s Criminal Law and Procedure, § 2099 (1957):

When on the evidence the accused might be convicted in a lesser degree of the offense charged or ot an included offense it is the duty of the court in its instructions to .embrace all the degrees of the particular offense and all included offenses to which the evidence is applicable.

In Hall v. State, 242 Ark. 201, 412 S. W. 2d 603 (1967), we reasserted from a prior holding this statement:

In each case, then, the question of whether it is proper to submit to the jury the question of defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction of that offense.

In each of the seven charges the appellant was accused of the larceny of a Travelers Express Money Order. The State advanced the theory that each check was valued at the amount allegedly inserted by appellant. On the other hand it was appellant’s theory that if a larceny was committed it concerned only the blank forms of the money orders, the value of which was testified to be three cents each. All the elements constituting the offense of petit larceny were in evidence and the court erred in refusing to give an appropriate instruction.

Point III. The court erred in allowing statements made by appellant while in custody to be introduced into evidence. Appellant asserts that his rights as declared in Miranda v. Arizona, 384 U. S. 436 (1966), were not followed by the officers who interrogated him on the day of his arrest. In a Denno hearing the arresting officers gave this account of the arrest and subsequent procedures: Two officers went to appellant’s home around noon with a warrant; the warrant was read to him and his rights were explained; they got in the police car and one of the officers read a standard form waiver, then handed it to appellant for his reading; appellant replied that he understood and signed the waiver; on the way to the station the officers advised that the charge involved some express money orders allegedly stolen from Railroad Salvage; and appellant asserted his innocence and stated that Mr. Dye was determined to give appellant trouble. Continuing, the officer drove to the lobby of the county jail and there the appellant asked to call a lawyer. Officer Bolls testified:

A.....He wanted to call a lawyer. I let him get hold of a lawyer. 1 believe, he eventually did get hold of Vince Skillman. Talked to him. Made several calls, not sure he got hold of him, but got hold of his office, I think.
* * *
Q. After he signed. . . .[the waiver] then you took him to the police station?
A. Yes.
Q. Then you let him use a phone?
A. Yes.
Q. He called a lawyer?
A. Yes.
Q. Mr. Skillman?
A. He tried to, I don’t know whether he did or not, he made several phone calls.
* * *
Q. After [he made] the telephone calls, what did you do?
A. I had called Mr. William Ward.
Q. With Travelers Express Company?
A. With Travelers Express Company. I wasn’t too familiar with money orders. Requested Mr. Ward to be with me when I continued talking to Mr. Pierce about the money orders,

Mr. Ward apparently arrived about the time the telephone calls were completed and Ward and the officer launched into detailed questioning of the accused. It was in that questioning period that much evidence favorable to the State was elicited.

If appellant’s rights were violated, it would be under the following language found in Miranda:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * * *

We interpret the quoted language to mean that the, accused has an unqualified right to stop the questioning at any stage and request that he be permitted to consult with an attorney. Once that request is made there should be no further questioning until an attorney has in fact been consulted. There is no proof that appellant was able to contact an attorney. We have copied all the testimony concerning the incident; all it reveals is (1) that appellant said he wanted to contact a lawyer, and (2) that the officer thought appellant got in touch with Mr. Skillman or someone in his office, “I think .... I don’t know whether he did or not, he made several phone calls.”

Officer Bolls had the minimum responsibility of ascertaining whether appellant’s desire to consult an attorney had been fulfilled before the questioning was resumed. When it is admitted by the State’s witness that the accused requested consultation with counsel the duty devolved on the State to establish that the consultation was effected prior to the resumption of questioning.

On retrial, the testimony relating to appellant’s questioning after the attempt to contact counsel will be excluded unless it be shown by proof not now in the record that it was proper to proceed with the questioning.

Reversed.

Harris, C. J., and Smith, J., dissent in part.

Fogleman, J., not participating.

George Rose Smith, Justice,

dissenting in part. The trial court was right in refusing to instruct the jury on petit larceny. It is familiar law that a requested instruction submitting a lesser' degree of the offense charged should not be given if there is no evidence to justify a verdict of guilty upon the lesser offense. See Simmons v. State, 184 Ark. 373, 42 S. W. 2d 549 (1931), citing cases.

That is the situation in the case at bar. According to the undisputed testimony someone filled in the seven express checks in amounts of $100 or more apiece and put them in circulation. If those transactions were authorized there was no larceny at all. If they were not authorized there was a theft of $772. There is no middle ground.

Pierce did not testify at the trial, but in his statements to the officers he insisted that he had authority to issue the checks, that he issued them lawfully, that he put the money for their full value in the cash register, and that if the money proved to be missing some third person must have taken it. Thus, according to Pierce’s own version of the case, he was either guilty of no offense whatever or he was guilty of grand larceny.

True, there was testimony that the blank forms were worth only three cents each, but I do not find one syllable in the record that would have justified the jury in finding that Pierce took the blank forms with felonious intent and then was guilty of no additional wrongdoing. Yet that is the only theory upon which the jury could have found the accused guilty of petit larceny only. The truth is that for the trial court to have submitted the issue of petit larceny would simply have given the jury an opportunity to reach a compromise verdict not supported by the evidence or to usurp the governor’s prerogative by a grant of clemency. For these reasons I disagree with Point II in the majority opinion.

Harris, C. J., joins in this dissent.


author: John A. Fog lemán, Justice.

text:
    Mrs. Earlene ASHABRANNER, Adm’x v. Gerald PEARLSTEIN
    5-5164
    451 S. W. 2d 177
    Opinion delivered March 9, 1970
    [Rehearing denied April 6, 1970.]

      Camp ir Lingle, for appellant.

      Pope, Pratt, Shamburger, Buffalo & Ross, for appellee.
   John A. Fog lemán, Justice.

This appeal comes from a judgment denying a homestead exemption of the proceeds of the sale of a homestead by appellant’s decedent in his lifetime.

Earl W. Johnson, a widower, whose children were all adults, sold his homestead in July 1967. He deposited the proceeds in his bank account. There is no doubt that the balance in the decedent’s bank account at the time of his death consisted of whatever remained of the proceeds of sale. Johnson had drawn certain checks against the bank account into which nothing except these proceeds had been deposited. Appellant, his oldest child, was appointed administratrix of his estate after his death on August 4, 1967. Although Johnson had not vacated the house on the property at the time of his death, he had been paid all of the consideration for the sale except for $52.09, representing the excess of the amount withheld for satisfaction of a mortgage on the property over the amount actually owed. Thére was testimony tending to show that he remained on the place under some agreement with the purchaser, who had fully performed his obligations on the date of the sale.

Appellant relies entirely upon our decision in Stanley v. Snyder, 43 Ark. 429. Although it is clearly held there that one’s homestead is not lost through death of his wife and maturity of his children, it was not contended there that the proceeds of a sale of the homestead made voluntarily by the occupant are exempt from the claims of creditors. It was held. that creditors had no standing to set aside a fraudulent conveyance of a homestead, because they had no rights in the homestead before its conveyance. This case is inapplicable because appellee, a judgment creditor, is not trying to reach or levy upon the homestead.

We have heretofore clearly held that the proceeds of sale of a homestead made voluntarily are not exempt from the claims of creditors. Drennen v. Wheatley, 210 Ark. 222, 195 S. W. 2d 43. What we said in the Drennen case governs here. Appellant does not specifically argue that the continued occupancy of the premises by the decedent after the sale was complete caused the property to retain its character as a homestead. It can readily be seen that this fact would not affect the result because no levy upon the lands is sought.

The judgment is affirmed.


author: John A. Fogleman, Justice.

text:
    Patricia KOZAL v. STATE of Arkansas
    5-5476
    451 S. W. 2d 224
    Opinion delivered March 9, 1970

      David O. Partain, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant asserts that the circuit court committed reversible error in its judgment revoking a previous suspension of sentence on a felony charge. The particular point upon which appellant relies is that no minimum. sentence was fixed in: the original judgment of the court suspending sentence entered on November 19, 1968,, so that- the court had, no authority to fix a minimum'sentence in its later! judgment revoking the suspension and ordering appellant committed to the Department‘ of Corrections. Ap-' pellant argues that Section 28 of Act No. 50 of 1.968, which became effective on February' 21,' 1968, governs this situation rather than Act’48, Section 28(2), or Act, 94, Section 1(2) of 1969. ' , ’

The record reflects no objection tó the judgment of the court fixing the minimrim , parole time at ohe:~ third of the sentence. The motion for new trial simply alleges that the court’s order revoking the' suspension of sentence previously imposed by the court arid the. finding that appellant had not been of good cóndüct and behavior are contrary to both the law and the evidence introduced pertaining to this issue and case. No mention whatever is made of the fixing of a minimum parole time.

We held in Petty v. State, 245 Ark. 808, 434 S. W. 2d 602, that we could not consider alleged error in fixing the minimum time to be served in the Department of Corrections when no objection was made to the entry of the judgment or the penitentiary commitment thereon or when the point was not presented to the trial court in a motion for new trial. Upon that authority, the judgment is affirmed, ,,


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    Garfield EDGAR v. G. W. EDGAR et al
    5-5132
    451 S. W. 2d 450
    Opinion delivered March 9, 1970
    [Rehearing denied April 13, 1970.]

      Henry Ginger and Hartman Hotz, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellees.
   J. Fred Jones, Justice.

Garfield Edgar appeals from an adverse decree of the Craighead County Chancery Court holding that Ruth Edgar owns a homestead interest in 80 acres of rice land and that it is not subject to partition among heirs as prayed in a petition filed by Garfield. On appeal here, Garfield designates the following point for reversal:

“The trial court erred in misconstruing the law and failing to find or hold that the property in question (the lower 80) was not a part of Ruth Edgar’s homestead, and therefore properly, ought to be partitioned, pursuant to Arkansas practices and procedures.”

Gordon C. Edgar and his wife, Ruth, owned 80 acres of farm land as an estate by the entirety and their home was located thereon. The southwest corner of this 80 acre tract joined the northeast corner of another 80 acre tract, and the two tracts are hereafter referred to as the north and south 80 acre tracts. Gordon C. Edgar held title to the south 80 in his own name, and he farmed the entire 160 acres until he died intestate on June 16, 1962. Mr. Edgar was survived by his widow, Ruth, and eleven children including Garfield and his brother, G. W. Garfield and his brother, G. W., continued to farm the entire tract of land as partners following their father’s death and they paid their mother rent on both 80 acre tracts until they dissolved their partnership arrangement in 1967. When Garfield approached his mother about renting the land for 1968, she advised him that she had already rented the land to his brother, G. W., for 1968. Upon learning that the south 80 belonged to the children of the decedent, Gordon C. Edgar, rather than to his widow, Ruth, Garfield filed suit in chancery court against G. W. for an accounting of profits for 1968, and against the widow and all the heirs for a partition of the land.

The chancellor held the south 80 to be a part of the homestead of Gordon Edgar during his lifetime; that it had never been abandoned by the widow and that any interest Garfield had in the property of Gordon Edgar, was subordinate and subject to the homestead rights of Ruth Edgar and not subject to partition. We are of the opinion that the chancellor was correct.

Ardele 9, § 4, of the Arkansas Constitution, provides as follows:

“The homestead outside any city, town or village, owned and occupied as a residence, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, to be selected by the owner, provided the ' same shall not exceed in value the sum of twenty-five hundred dollars, and in no event shall the homestead be reduced to less than eighty acres, without regard to value.”

Article 9, § 6, of the Constitution is as follows:

“If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age— each child’s right to cease at twenty-one years of age — and the shares to go to the younger children, and then all to go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.”

The evidence shows that the two 80 acre tracts are joined by á road or passageway from one to the other and by an- irrigation flume. It is not seriously contended that the two tracts are not contiguous and were not operated as one farming unit of 160 acres by the decedent, Gordon C. Edgar. In Clements v. Crawford County Bank, 64 Ark. 7, 40 S. W. 132, this court said:

“Where two parcels of land corner with each other, they are contiguous, they touch; and there can be nothing unreasonable or unjust in allowing the two pieces to be selected, and claimed as a homestead, where they constitute all the land the claimant owns, and do not exceed the legal area and value.”

Soon after her husband’s death in 1962, Ruth Edgar sold the north 80 to G. W. and Garfield Edgar retaining in the quitclaim deed a life estate. Garfield argues here that the south 80 may not be claimed as a homestead because the north 80 was owned and occupied as a residence, and either 80 exceeds the constitutional value limitation of $2,500. There is nothing in the pleadings pertaining to thQ value of the property at the time of Gordon C. Edgar’s death or at any other time. The only evidence offered as to the value was thé testimony of G. W. Edgar on cross-examination, wherein he testified that the present value of the north 80 is $48,000 and the south 80 is $40,000.

In his petition Garfield Edgar simply alleged his interest in the property as a surviving child and heir of Gordon C. Edgar who died intestate on June 16, 1962. He prayed for a partition of the land and an accounting of profits by those in possession. The separate answer of G. W. Edgar and Ruth Edgar set out that Ruth Edgar has a homestead interest in the property involved and that same is not subject to partition during her lifetime.

The interest the parties had in the property vested at the time of the decedent’s death on June 16, 1962. There is no allegation in the pleadings, and there is no proof in the record, as to the value of the property at the time of the decedent’s death on June 16, 1962.

The decree is affirmed.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I do not agree that the pleadings did not encompass an issue as to the value of the homestead. The homestead right was asserted by answer as a defense to appellant’s action for partition. Having been asserted in this manner, no responsive pleading could have been filed by appellant. Every possible infirmity of the claim of homestead was put in issue without any pleading on appellant’s part. Norton v. Hindsley, 245 Ark. 966, 435 S. W. 2d 788.

The only evidence offered as to value of the property related to its value on the date of the trial, but appellee Ruth Edgar cannot benefit by a deficiency in the proof on this issue. No evidence was offered by her on the subject, of value. Appellant had made a prima facie case for partition. The burden was upon the claimant to establish the homestead right and its extent and value. Pace v. Robbins, 67 Ark. 232, 54 S. W. 213. See also Hatcher v. Wasson, 191 Ark. 765, 87 S. W. 2d 578 and Barnhart v. Gorman, 131 Ark. 116, 198 S. W. 880, where the homestead right was asserted as a defense.

I would reverse the decree and remand the cause for partition.

Brown, Jf., joins in this dissent.