text:
    RED LINE TRANSFER & STORAGE CO. v. CASH & SONS L-P GAS Co. and Hurley Furniture & Hardware Co., Inc.
    5-5651
    472 S.W. 2d 705
    Opinion delivered November 15, 1971

      Dickey, Dickey & Drake, for appellant.

      Huey ir Vittitow, for appellees.
   J. Fred Jones, Justice.

Cash & Sons L-P Gas Company and Hurley Furniture & Hardware Co., Inc., hereafter referred to as “Cash” and “Hurley,” own and operate retail stores in Warren, Arkansas. Red Line Transfer & Storage Company, hereafter referred to as “Red Line,” is a common carrier of freight by motor truck and services the Warren area. Cash and Hurley filed separate suits against Red Line in the Bradley County Circuit Court alleging damage in transit to a washing machine purchased in Little Rock by Cash and a gas range purchased in Cleveland, Tennessee, by Hurley and delivered to their places of business in Warren by Red Line. A consolidated trial of the cases before the judge, sitting as a jury, resulted in judgments against Red Line for $164 in favor of Cash and for $117.98 in favor of Hurley.

On appeal to this court Red Line relies on two points. It contends that Cash and Hurley failed to prove that the washing machine and range were in good condition when delivered to Red Line, and it contends that they failed to prove that the articles were in a damaged condition when delivered to them by Red Line.

Cash submitted evidence that three washing machines were delivered to its store in Warren by Red Line; that the shipment originated in Little Rock and the machines were concealed in cardboard boxes or cartons. The testimony is to the effect that there was no damage to one of the machines, but the cardboard carton on one of them was broken and a scratched place was plainly visible on the machine at the time it was delivered in Warren. A notation of that fact was made on the delivery ticket and damages in the amount of $15 were subsequently paid on this machine by Red Line. Mr. O. S. Cash as well as his son, Bruce, testified that the cardboard carton containing the third machine was caved-in on top, and that upon removal of the carton and examination of its contents soon after delivery, it was found that this machine had sustained extensive and irreparable damage to the controls on the back of the machine.

Mr. Bruce Cash, the store manager, testified that he was in and out of the store during the day the washing machines were delivered but that he does not recall whether he observed or assisted in the actual process of unloading this particular shipment or not. He testified that he did uncrate the washer on the same day it was delivered and found that it was damaged beyond repair.

At this point Cash rested its case and Red Line moved for a directed verdict on the ground that there was no proof that the washing machine was delivered to Red Line in good condition and delivered to Cash in a damaged condition. The motion was denied by the trial court, whereupon Hurley proceeded with its evidence.

Mr.. Terral Wallace, manager of Hurley, testified that he ordered a gas range from the seller in Cleveland, Tennessee, and that it was delivered to the Hurley Store in Warren by Red Line. He testified that the range was concealed in a crate or carton when it was delivered and that it was inspected by his assistant manager, Mr. Leroy Thornton, who signed the freight bill indicating that no defect was noticed on the carton at that time. He testified that on the day following delivery, when the crates were opened by the warehouse men, the damage to the range was first discovered. Mr. Wallace testified that the frame of the range had been bent until it could not be repaired to a safe and saleable condition, and that it appeared to have been dropped from a height landing on its left front corner. A copy of a freight bill was placed in evidence as an exhibit to Wallace’s testimony. It showed delivery of one gas and one electric range, and was signed by Leroy Thornton under the printed form statement “above shipment received in good condition.”

Mr. Wallace testified that on many previous occasions he had reported “concealed damages” to Red Line and the claims were paid. He testified that he was not present at the Hurley warehouse when the range was delivered, but that when he inspected it the day following delivery, there was no apparent damage to crate or carton and that he only discovered the damage to the range after the crate was removed. Mr. Wallace testified that it was his understanding the range was shipped by rail from Cleveland to Memphis, Tennessee, and was picked up by Red Line in Memphis. He says that he has no way of knowing what happened to the range in transit.

At this point Hurley rested its case and Red Line moved for a directed verdict on the ground that there was no proof that the range was delivered to Red Line in good condition and delivered to Hurley in a damaged condition. The motion was denied, whereupon Red Line proceeded with its evidence.

Mr. Presson, manager of the claims department for Red Line, testified that the freight bill on the washers delivered to Cash bore a notation “1 washer damaged,” and that this damage was paid in the amount of $15.00. He testified that a claim for “concealed damage” discovered after delivery was presented by Cash on another washer and that this claim was denied because he felt that if damage to one washer in the amount of $15.00 could be discovered and noted on the freight bill, then certainly the claimed damage to the other washer amounting to total loss could have been discovered and so noted on the freight bill.

At this point Red Line introduced as exhibit 1 to Mr. Presson’s testimony, a delivery receipt or freight bill bearing the notation: “1 washer damaged.” This exhibit was signed by the office secretary of Cash under the printed form words, “The above shipment received in good condition.” Mr. Presson then testified on cross-examination as follows:

“BY MR. HUEY:
Q. Mr. Presson, what condition was the washer in in Little Rock when Red Line picked them up?
A. From the bill of lading contract, apparently in good order.
Q. Then if something happened to it, it happened from the time it left Little Rock until it got delivered here in Warren?
A. Not necessarily. We delivered it in apparent good order, in the same condition which we received it.
Q. Do you have any evidence that damage occurred to this machine at any place other than while it was in transit prior to the point of delivery to Mr. Cash? You investigated this pretty thoroughly?
A. I investigated it and have no factual evidence that it was and no factual evidence that it was on delivery to Mr. Cash [sic].
Q. Have you seen this merchandise?
A. I have not.
Q. Then you don’t know if its damaged yet?
A. I do not, only from the records.”

This witness further testified that when Red Line executes a bill of lading it seals the contract of carriage between the shipper and Red Line. He says that as a general rule, a Red Line truckdriver inspects the articles to be transported when he picks them up, and if there are any visible signs of damage he will note same on the bill of lading," but that the driver has no authority to examine contents of packages for a determination of damage. He testified that as a matter of practice Red Line asks the merchant to whom delivery is made not to hold up the drivers while cartons are opened and the contents examined unless there is apparent damage to the carton. He says that in instances where the receiving merchant can see that a carton has been damaged, he may request the driver to open the carton or package for examination and that under such circumstances Red Line permits this to be done.

As to the Hurley claim, Mr. Presson testified as follows:

“Q. Mr. Presson, there is testimony in this case that Mr. Wallace said the case was in apparent good shape. Now, would your testimony be the same as in the other case I believe, that this was apparently picked up in Memphis and was in apparent good order when it was picked up there in Memphis?
A. This particular shipment, Mr. Vittitow, was picked, up in Cleveland, Tennessee, and transferred to Red Line at Memphis.
Q. That’s what I’m speaking of, that on passing between the two carriers it apparently was in good order. You stated to Mr. Huey’s question that you ask the merchants not to open the crates as soon as they are delivered and hold up your driver unless there is an apparent defect of the crate, damage to the crate itself.
A. No, sir, what I think I said was, that the merchandise doesn’t belong to the consignee until such time as he receipts our delivery receipt for it, he has no right to open it.”

We are of the opinion that there was sufficient competentf evidence to sustain the judgment of the trial court in favor of Cash, but we are of the opinion that there was not sufficient competent evidence to sustain the judgment in favor of Hurley.

We agree with the appellant, Red Line, that to establish a prima facie case of liability for damage to goods shipped by common carrier, the plaintiff must prove that the goods were delivered to the carrier in good condition and delivered by the carrier in a damaged condition. But once these two points are established, a presumption of negligence on the part of the carrier arises and in order to avoid liability, the carrier is required to go forward and show by a preponderance of the evidence that the damaged condition was not the result of its negligence. Ry. Express Agency, Inc. v. Shull, 224 Ark. 476, 275 S. W. 2d 882; Kansas City So. Ry. Co. v. Shull, 199 Ark. 932, 136 S. W. 2d 1040; 14 Am. Jur. 2d, Carriers, § 618. See also American Ry. Express Co. v. Rouw Co., 173 Ark. 810, 294 S. W. 401 and cases there cited. See also 13 C. J. S., Carriers § 254 (j) (2).

As to Red Line’s first point for reversal, as related to the judgment in favor of Cash, the deficiency in the evidence submitted by Cash, was satisfied by the testimony of Mr. Presson, the manager of Red Line’s claims department, when he testified as follows:

“Q. Mr. Presson, what condition was the washer in in Little Rock when Red Line picked them up?
A. From the bill of lading contract, apparently in good order.”

See Ft. Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594, 124 S. W. 2d 1; also VTR, Inc. v. Tolbert, 240 Ark. 31, 397 S. W. 2d 807.

The effect of a recital in a bill of lading that the goods are in “apparent good order” when received by the carrier amounts to prima facie proof of the true condition of the goods when received, but in Railway Co. v. Neel, 56 Ark. 279, 19 S. W. 963, this court said:

“The true rule, as it appears to us, is that the clause ‘in apparent good order’ refers only to the external condition of the goods, and as between the original parties is only prima facie proof of the true condition of the goods when received, like any other recital or statement of fact in a receipt not amounting to a contract.”

See also annotation in 53 A. L. R. 2d 867, § 3, including A. L. R. Later Case service to this annotation; also 14 Am. Jur., Carriers, § 619.

As to Red Line’s second point, in relation to Cash, we conclude that the evidence made out a fact question for the court’s determination when sitting as a jury, and that there was substantial evidence supporting the court’s conclusion that the washer was delivered to Cash in a damaged condition, while the delivery receipt signed by an employee of Cash, recites “1 washer damaged.” The undisputed testimony of O. S. Cash and Bruce Cash is substantial evidence that the packing crate as well as the washer were in a damaged condition when delivered by Red Line.

The reasoning applied by the United States Fifth Circuit Court of Appeals in Reider v. Thompson, 197 F. 2d 158, would appear applicable to the case at bar. In Reider the court said:

“* * * When packages are received by the carrier in acknowledged good external condition but are delivered by the carrier in a damaged or stained condition which could reasonably and logically be found to indicate that the discovered damage or deterioration of the contents resulted from the cause indicated by the condition of the external package, theretofore received in good condition, the trier of facts may infer from these circumstances that damage to the contents was occasioned by the negligence of the carrier in the respect indicated by the changed external condition of the package.”

As to the judgment in favor of Hurley, we agree with Red Line that the judgment must be reversed. While Mr. Presson was questioned concerning the condition of the range and its crate when it was received in shipment by Red Line, he did not answer the question. Mr. Wallace testified that the crate or container for the range appeared undamaged when it was delivered to Hurley in Warren, but that the range was found badly damaged when it was removed from the crate soon after delivery. There is no evidence at all that the range was in good condition when received by Red Line.

The judgment in favor of Cash & Sons L-P Gas Company is affirmed and the judgment in favor of Hurley Furniture & Hardware Co., Inc. is reversed, and that cause is remanded to the Bradley County Circuit Court for a new trial.

Harris, C. J., not participating.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    E. R. HENRY, Jr., Patrick B. Dillon, Harry C. Norris and Charles W. Taylor v. C. C. STUART, Noel Newton and Burt Southard, as members of the Desha County Board of Commissioners
    5-5760
    473 S.W. 2d 165
    Opinion delivered November 15, 1971
    [Rehearing denied December 20, 1971.]

      Dickey, Dickey & Drake, for appellants.

      Gill ir Clayton, for appellees.
   J. Fred Jones, Justice.

E. R. Henry, Jr. and the other named appellants filed a taxpayers suit in the Desha County Circuit Court against C. C. Stuart and other members of the Desha County Board of Election Commissioners seeking to contest the vote by which a school millage tax increase for the erection of a school building was adopted at an election held within the boundaries of the Dumas Special School District on March 19, 1971. The complaint alleges that the district lies in Lincoln County as well as in Desha County, but that its administrative office is in Desha County.

The Commissioners demurred to the complaint for defect in parties in that the members of the Desha County Board of Election Commissioners were not proper parties to the action, and on the alternative ground that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer on both grounds and the original plaintiffs as appellants here, rely on the following points for reversal:

“The court erred in finding that the Desha County Election Commissioners were not proper parties to this suit.
The court erred in finding that the complaint did not state a cause of action.
The election laws violated were necessary for a free and intelligent casting of the vote and the court clearly erred in dismissing the appellant’s prayer for a recount.”

Having reached the conclusion that the trial court was correct in sustaining the demurrer for defect in parties, we do not reach the appellants’ second and third points.

Under the alleged irregularities set out in the complaint, the integrity of the “Mitchellville Box” was chailenged for the reason that two election judges expressed preference for the measure voted upon throughout the day of the election, and that in this same box one Rozener Malone was allowed to vote without appearing at the polling place. The integrity of the “Library Box (Dumas Box 1-A)” was challenged on the ground that no duplicate copy of the voters list was posted outside the polling place as required by law, and that after the ballot envelope was sealed, an election official from this polling place opened the envelope without the authority of a court order. The complaint alleged that there were three other boxes where the total of votes cast in the election did not total the number of voters who registered to vote on said date, and that there were no canceled ballots received separately from the other ballots and turned over to the election commissioners to explain the differences. The complaint alleged that in the polling place called “Lee’s Washateria and Dumas Library,” the voters list did not include the addresses of the voters, thereby preventing a determination of whether the 715 voters lived outside the polling place jurisdiction, and that in the “Pickins Box” the addresses of four voters reflected that they lived outside the precinct where they voted, thereby rendering the votes invalid.

The answer to the question presented under the appellants’ first point calls for a determination of the proper parties defendant in a suit of this nature. We are cited no statutory provision as a direct answer to the question and, following our own research, we conclude that there is none. The cases cited by the appellants are of no assistance for they either turn on facts different from those in the case at bar, or they do not reach the question now before us.

The case of Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931, cited by the appellants, involved a contest for the office of school director, and while the election commissioners were joined as parties defendant along with the certified candidate, the question of whether the commissioners were proper or necessary parties was not raised and that issue was not involved.

In County Board of Election Commissioners of Lonoke County v. Waggoner, 190 Ark. 341, 78 S. W. 2d 821, cited by the appellants, the vote by which a three mill road tax was defeated was the subject of the contest, and whether the circuit court or the county court had jurisdiction was the question involved. Following a recount of the votes in that case, the election commissioners certified that a majority had voted against the road tax and the county judge filed a taxpayers suit against the board of election commissioners charging fraudulent practice in the holding of the election and seeking to contest the election on the question of the road tax. The judge of the Lonoke County Circuit Court issued an order impounding the ballots, poll books and other election supplies and restraining the commissioners from certifying the results of the election on the question of the road tax. It was discovered, however, that the results of the election had already been certified before the restraining order was served on the commissioners. The county board of election commissioners then filed a motion to dismiss the complaint seeking to contest the election not on the grounds that they were improper parties to the suit, but on the grounds that the circuit court was without jurisdiction. The motion was overruled by the trial court and the matter reached this court on a petition for a writ of prohibition filed by the commissioners to prohibit the Lonoke Circuit Court from proceeding in the matter and contending that exclusive jurisdiction of the cause was in the Lonoke County Court. So the question presented in that case was whether the county court or the circuit court ,had jurisdiction of election contests involving county road tax, and the question of whether the election commissioners were proper parties was never raised and was not involved.

The appellants cite Gregory v. Gordon, 243 Ark. 635, 420 S. W. 2d 825, in which the election commissioners were proper parties defendant but the question of proper parties was not raised or answered in that case. In Gregory the suit was brought by property owners against the election commissioners to void an entire election as to a public library tax because of defective ballots prepared and furnished by the election commissioners. No testimony was taken in that case but it was not denied that 95% of the voters in the election were furnished defective ballots. It was the direct obligation and duty of the election commissioners to prepare and furnish proper ballot forms and the entire election on the issue involved was voided as a direct result of the commissioners’ dereliction in the preformance of their legal ministerial duties. The Gregory case is clearly not in point with the case at bar.

In the case of Christenson, et al v. Felton, et al, 226 Ark. 985, 295 S. W. 2d 361, the last case cited by the appellants, the vote by which a school tax was certified as adopted was being contested on the allegations that there were many void votes cast in the election. Fifteen of the votes were challenged as illegal on the ground that the voters had failed to vote in their proper school district polling places. The trial court, finding that the election commissioners had never designated polling places for each school district in the county, held that the 15 votes were valid. The reported opinion in Felton does not indicate whether “Felton, et al” were members of the election commission or members of the school board, but the appellants in the case at bar state in their brief, that the Felton case “as revealed by the original record filed in that case,” is factually on all fours with the case at bar. We do not so construe the original record in Felton. The original record in the Felton case shows that the original complaint was filed on April 5, 1956, and it does name Dan Felton, Jr. and other members of the board of election commissioners as the only parties defendant. But the original record also reveals that on the same day the complaint was filed, it was amended to add as parties defendant, the named members of the board of directors of the Marianna, Arkansas School District “A.”

Having found no statutory provision or case law as a direct answer to the question here involved, we simply hold that the directors, or school board members, of the Dumas Special School District were the proper parties defendant in this case, and that the members of the Desha County Board of Election Commissioners were not.

The duties of county boards of election commissioners are set out in Ark. Stat. Ann. § 3-506 et seq. (Supp. 1969), but unlike in Gregory v. Gordon, supra, the complaint in the case at bar does not allege or suggest that the defendant commissioners exceeded their statutory authority or that they violated, or failed to properly perform, any of the duties imposed upon them by law. Ark. Stat. Ann. § 3-609 (Supp. 1969) provides for reimbursement of expenses incurred by the county election commissioners in holding an election, but there is no provision for reimbursement of expenses incurred in defending an election contest. Ark. Stat. Ann. § 27-801 (Repl. 1962) provides that every action must be prosecuted in the name of the real party in interest. So assuming, that in the case at bar, the tax levy failed of adoption on the face of the election returns as certified, no one could seriously contend that the county election commissioners, acting in their official capacity, rather than as taxpayers, would be the real or proper parties in interest to prosecute an action to contest the election. This is especially true when the school district, as here, lies in two adjoining counties.

We turn now to the interest of the school board members. Amendment 40 to Article 14 of the' Arkansas Constitution provides:

“. . . school districts are hereby authorized to levy by a vote of the qualified electors ... an annual tax for . . . the erection and equipment of school buildings...
The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of the expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by the Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election.”

Ark. Stat. Ann. § 80-602 (Repl. 1960) authorizes the electors of each school district to vote a tax for the support of schools in the district:

“* * * Provided, the suggested rate to be voted on may be placed on the ballot on order of the school directors or representatives of the district, and such ballots may show the portion of the tax to be voted in the building fund as is provided by law, and the vote on such tax in the building fund may be for successive years as provided by law. The rate of tax receiving the greatest number of votes at the school election shall be the tax to be levied in the district. If no annual election shall be held in any district in the State at the appointed time, the board of directors of such district may call a special election for the purpose of voting on the district tax and for school directors.”

Thus, it is seen that school directors are charged with numerous and varied duties under the law. They are not only charged with the constitutional responsibility of ascertaining the amount of money needed for the construction and operation of schools, and the rate of taxation necessary to raise the amount needed; they have the added statutory responsibility of seeing that the necessary rate is placed on the election ballot to be approved or rejected by the voters. Section 80-602, supra.

It goes without saying that district school directors are charged with the responsibility of spending the money raised for school purposes by taxation within their respective districts, and they are charged with the responsibility and authority to:

“Do all things necessary and lawful for the conduct of an efficient free public school or schools in the district.” Ark. Stat. Ann. § 80-509 (m) (Repl. 1960).

Consequently, we can conceive of no person or pub-, lie entity having a greater interest in the vote by which a tax levy for the erection of a district school building is adopted or rejected than the school district in whicb an election is held for that purpose; and we can conceive of no one having a greater interest or duty in defending a suit contesting the vote by which such tax levy is adopted, than the directors of the district who found and declared the need, ascertained the amount needed and arranged for its inclusion on the election ballot. So we hold that the members of the school board of directors and not the county board of election commissioners were the proper parties to be made defendants in the case at bar.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Frank DAVIS, Administrator v. Earvin Kelch DAVIS
    5-5703
    473 S.W. 2d 172
    Opinion delivered November 15, 1971
    [Rehearing denied December 20, 1971.]

      Butler &r Hichy, for appellant.

      Giles Bearing, for appellee.
   Conley Byrd, Justice.

Appellee Earvin Kelch Davis brought this action after the death of her husband Julian Dean Davis to set aside a divorce he had obtained upon constructive service on February 11, 1965, on the ground that he had committed a fraud upon her and the court in representing she was a nonresident when in fact she was living with him when suit was filed and the decree entered. The trial court found that the parties were living together at the time and declared void the February 11, 1965 decree. For reversal, appellant Frank Davis, Administrator of Julian’s estate, contends:

I. The Chancellor’s finding that Julian Dean Davis perpetrated a fraud upon the Court and appellee in obtaining his divorce in February of 1965 is clearly erroneous in that it is contrary to preponderance of the evidence and the weight of evidence.
II. The Chancellor’s finding that appellee was not estopped and that laches does not apply under the circumstances and facts of this case is clearly erroneous and against the preponderance of the evidence.
III. The lower Court erred in not permitting all of appellant’s witnesses to testify on the petition to vacate the decree of April 17, 1970.

It is not contested that appellee and Julian Davis were married the first time on February 15, 1952, divorced in January 1958, and remarried April 18, 1958. On February 15, 1963, appellee filed suit for divorce. While that action was pending, Julian Dean Davis on November 18, 1963, filed a separate action for divorce in the same court. Both of these suits were dismissed June 22, 1964. On January 4, 1965, Davis filed the suit that is now in controversy and alleged that appellee was a nonresident. The attorney ad litem report shows that the notice he mailed was returned stamped “addressee unknown”. A decree was entered on this complaint on February 11, 1965. Julian Dean Davis died on January 20, 1969, and the present action was commenced on February 24, 1969. All other facts are contested.

Appellee testified that she lived with Davis from the fall of 1964 up until his death, except for a short period in 1967 when Davis had beat her up. She states that she did not know Julian Dean Davis had filed the 1965 action or taken a decree therein until the family refused to let her sit with them at the funeral. Her testimony was that she was living with Julian Dean Davis at Twin Bridges on January 4, 1965, and that they lived there until January 21j 1965. They then moved to Memphis where they lived until July. From Memphis they moved to 219 Fussell, Forrest City, Arkansas. After about a year they moved from Forrest City back to the farm at Twin Bridges. In B or 4 months they moved from the farm back to the same place in Memphis where they remained for about 5 months. With respect to the period from January 4, 1965, through January 21, 1965, appellee testified that she was treated by Dr. E. C. Clay, a dentist, on January 4, 1965, and on January 12, 1965, her foot was burned and she was treated by Dr. E. J. Chaffin. She also had a birthday party on January 19, 1965, which was attended by a number of people.

Appellee corroborated her testimony with a receipt from Dr. E. C. Clay dated January 4, 1965, for $50.00; by a sales slip from Kemp Pharmacy, Inc., dated January 19, 1965, for one box of candy and one card (this was allegedly purchased by Mr. Davis for her birthday), and a sales slip from St. Vincent De Paul Salvage Store Inc., dated January 26, 1965, for the purchase of a washer and dryer to be delivered to her Memphis address. Introduced also was the hospital record where Julian Dean Davis, in admitting himself to the hospital on January 8, 1969, before his death on January 20, 1969, listed appellee as his wife.

Another item that deserves special mention is a grocery receipt book. Appellee testified that during 1964 and 1965, they purchased on credit groceries and gasoline from Alma Ross at Widener. In getting ready for trial she asked Mrs. Ross if she had any receipts showing that appellee and Julian Dean Davis did business with her in 1964 and 1965. At the time the request was made Mrs. Ross was busy but told her if she would come back later she would see what she could find. About two hours later Mrs. Ross exhibited the book showing purchases by appellee and Julian Dean from October 14, 1964, through February 16, 1965. Each ticket in the book is signed either by appellee or Julian Dean Davis. When appellee called Mrs. Ross to the witness stand Mrs. Ross admitted that she gave the book to appellee but stated: "I don’t know why she got me in here but I am not going to get myself in any trouble and I did not buy the store until September of 1965, but I did know them before.” On cross-examination Mrs. Ross stated that when appellee came by and asked for the tickets, she (Mrs. Ross) just made them up for her and gave them to her.

Mrs. W. H. Reeves testified that appellee and Julian Dean Davis rented an apartment from her in Memphis on January 21, 1965. Dr. E. C. Clay verified that he worked on appellee’s teeth in January 1965 and that he signed the receipt on January 4, 1965. Appellee’s mother Mrs. Lillie Mae Phillips, her stepfather Earnest Phillips, her daughter Glenda Kelch, Irene Warner and Gaylon Warner all verified that they attended a birthday party at Twin Bridges when Julian Dean Davis gave appellee a blue negligee and gown. Dr. E. J. Chaffin verified that his records showed that he had treated appellee in January and February 1965, for a burn on her right foot.

Hugh Sweatt testified that he visited with Julian Dean Davis from October 1964 until October 1965, and was frequently with Davis at the Twin Bridges farm. During those times appellee Earvin Kelch Davis was not living with Davis. He did not see appellee until sometime in March or April 1965, when he saw her in an apartment in Memphis. Hugh Sweatt’s wife Margaret testified that she saw Dean Davis in her attorney’s office on February 6, 1965 and learned that he was also getting a divorce. She was in Dean’s house at Twin Bridges in April 1965, and appellee was not there. In fact the house looked like no one kept it for him. In April 1965 she and her husband had steaks in Julian Dean Davis’ apartment in Memphis.

Norris Burns testified that he lived 2Vt to 3 miles from Julian Dean Davis in 1965 and 1966 and that after appellee left Julian Dean Davis in 1964 he did not see her anymore until he moved from there in January of 1967. His wife Lucille Burns verified that they were frequent visitors in the Davis house from 1964 until they moved in 1967. She says that when she saw appellee in the latter part of 1966 appellee told her: “I can get along (better) by not being married to him than I can being married to him.”

Sally Moore testified that she started working for Davis in October 1964 and worked for him until April 1965. Her duties were to cook breakfast and clean house. During that time appellee was not there.

James Davis, a brother of Julian Dean Davis, testified that appellee was not living with his brother in 1964 and 1965. On cross-examination he stated that to his knowledge Julian Dean never did live in Memphis.

Don Edmonds, the manager of the Holiday Inn, testified that appellee worked for him from October 27, 1967, through November 20, 1967, under the name of Ellen Marlene Kelch.

Cecil Clark testified that Julian Dean Davis filed his 1965, 1966 and 1967 income tax returns as a single man and that although he knew appellee, he never saw her with Davis.

Upon the foregoing record the Chancellor found that the February 11, 1965, divorce decree was null and void. Thereafter on a petition to reopen for newly discovered evidence the Chancellor heard the testimony of Glenda Kelch, Elmer Christy, Naomi Kelch, E. J. Butler and Earl Davenport on behalf of appellant and rebuttal testimony by appellee and her then husband Gordon Campbell.

Elmer Christy testified that he was involved with Glenda Kelch in a sexual matter and that Glenda told him that she and her mother had lied when they first testified.

Naomi Kelch testified that she married appellee’s son by a prior marriage on July 11, 1969, before the trial of the case on July 15th and 16th and that she had previously agreed with Mrs. Davis to say that she was at the birthday party on January 19, 1965, but she knew it was wrong and told appellee so. After it was established on cross-examination that prior to the trial on July 15th and 16th, she had also told appellant’s counsel that she was not at the birthday party, the following occurred:

“JUDGE SMITH: You talked to her Mr. Butler and you knew what she knew and you did not ask her to be a witness.
MR. BUTLER: I thought she was hostile. But I think I can ask her if Mrs. Davis asked her. Mrs. Davis in her deposition said this person would be called.
JUDGE SMITH: You should have known she said she was not there.
MR. BUTLER: The purpose of this is to show that Mrs. Davis was trying to get this young lady to testify. I did not know what she would say on the witness stand.
JUDGE SMITH: I am going to let you make a record on it. Where she was called and you subpoenaed her and didn’t call her I don’t know how you can make her testify later but you can make your record over Mr. Dearing’s objections.”

Glenda Kelch testified on the petition to reopen that she testified incorrectly at the trial on July 15th and 16th. That in January and February of 1965 she and her mother were living in California and that on January 14, 1965, she witnessed the marriage of her mother to Harold Koleber. She then went to her father in Illinois and did not see her mother until sometime in April 1965. At that time her mother met her at the plane in Memphis and they went to Dean Davis’ place on the farm. At the farm Dean Davis showed appellee some papers and said they were divorce papers. On cross-examination she was thoroughly interrogated about a letter allegedly written by her on a typewriter but unsigned. During the cross-examination it was developed that she was pregnant by Elmer Christy, that he had not married her, that he was the only person whom she had told that she had lied at the trial until she signed the affidavit in the office of appellant’s counsel on February 27, 1970, and that she was presently living with Elmer Christy in Texas. With reference to the letter, she admitted that she wrote some parts of it but insisted that what she wrote was in long hand. She denied writing other parts. After stating that she had had no prior contact with counsel for appellant, she testified that her affidavit was already prepared when she got to counsel’s office and that she had some changes made before she signed it.

E. J. Butler, appellant’s counsel, presented a certified but unauthenticated marriage license from the State of California showing that on January 14, 1965, a Marliena Mitzah married a Harold Dean Koleber and that Glenda Kelch was a witness.

Earl Davenport, a handwriting expert, testified that the “m’s” and “i’s” in the “Marliena Mitzah” were similar to the “m’s” and “i’s” in the specimens of appellee’s handwriting presented. On cross-examination he testified that the signatures of Julian Dean Davis on the Alma Ross grocery tickets when compared to his handwriting on deeds executed and in evidence were made by the same person. He also identified the appellee’s signatures on the grocery tickets as having been made by her.

Appellee in rebuttal denied that she was never married to Harold Dean Koleber and denied that she was the “Marliena Mitzah” who signed the marriage license. Then she identified the typewritten letter about which Glenda Kelch was interrogated as being a letter received from Glenda. Gordon Campbell, appellee’s present husband merely identified the typewritten letter as one received in the envelope that Glenda Kelch admitted mailing to her mother. A portion of the letter dated January 20, 1970, is as follows:

“Well, Mom I know you are wondering when i am going to tell you, what Elmer, and I had a long talk about, I wish i didnt have to tell you, but you would find out anyway, and i would rather you heard it from me first, Mom, you have always tried to understand, what i do, Please Please, try this time, because i need you, more than I ever could again, Mom, I know what I am about to tell you will hurt, but it is something I have to do, I dont have a choise in the matter, please believe that, It is either you, are my Baby, and I cant take the chance of Elmer, having the welfare taking it away from me, Mom, he has given me a choice, he wonts me to go to the Lawyer and sign a paper, saying that I lied in court, that there wasn’t a birthday party, and that you, were the one that married that man in California, and i was there, and know that it was you that did it, If I will sign all that, Elmer has promised that we would leave here, and go to Hot Springs, or Texas, His Mother lives in Hot Springs. and his grandmother, in Texas, he said that the Davis Family would pay him enough that we could leave, get married, and pay my hospital bills, when i have the Baby but if i dont sign, he wont marry me, and he will do every he can to see that i lose the Baby.”

Upon the whole record, we cannot say that the chancellor’s finding that the parties were living and residing together at the time the divorce decree on constructive service was rendered is against a preponderance of the evidence. Neither do we find an abuse of discretion in refusing to open the decree on the proof presented. In the first place the handwriting expert in identifying the Julian Dean Davis signatures on the Alma Ross grocery tickets as that of Julian Dean Davis corroborated the appellee’s testimony that they traded there during the times shown. Furthermore, the photographic copies of the marriage license and certificate of marriage in California were not authenticated and were not admissible. Ark. Stat. Ann. § 16-502 (Repl. 1968), upon which appellant relies to make photostatic copies of records admissible applies only to such records, the originals of which would be admissible. Of course, even the original record of the alleged California marriage would not be admissible until authenticated.

Appellant also contends that appellee is estopped to contest the validity of the divorce because she sometimes went under the name of Earvin Kelch. We find this to be without merit. The record shows that when they were separated in 1967 appellee testified she went under the name of Ellen Kelch to keep Julian Dean Davis from finding her and also at other times he had her to use the name Kelch for income tax purposes. Appellant’s contention completely overlooks the fact he was holding her out as his wife to the hospital as late as January 8th before his death on the 20th.

Appellant also contends that the court erred in refusing to let him present the testimony of other witnesses on his petition to open and vacate. Here we find no abuse of discretion. The witnesses proffered had all testified at the original trial.

Affirmed.


text:
    Leona ELLIS et al v. John H. ELLIS et al
    5-5652
    472 S.W. 2d 703
    Opinion delivered November 15, 1971

      Anderson & Crumpler, for appellants and crossappellees.

      Shackleford ér Shackleford, for appellees and cross-appellants.
   Conley Byrd, Justice.

The sole issue on this appeal is whether Cynthia Scales, an illegitimate child of decedent’s sister, is a dependent and foster child within the meaning of the Arkansas Workmen’s Compensation statutes for purposes of compensation benefits.

The persons entitled to receive benefits under the Workmen’s Compensation Act are set out in Ark. Stat. Ann. § 81-1315 (c) (Repl. 1960) as follows:

“(c) Beneficiaries — Amounts. Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15%) per centum each.”

The term “child” in the Workmen’s Compensation statute is defined by § 81-1302 (j) as follows:

“(j) ‘Child’ means a natural child, a posthumous child, a child legally adopted'prior to injury of the employee, a step-child, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child. ‘Child’ shall not include married children, unless wholly dependent upon the deceased.
(1) ‘Grandchild’ means a child of a child as above defined.
(2) ‘Brother’ and ‘Sister’ means natural brother and natural sister, step-brother and step-sister, half-brother and half-sister, brother and sister by adoption, foster brother and foster sister.
(3) ‘Child,’ ‘Grandchild,’ ‘Brother’ and ‘Sister’ shall include only persons who, at the time of the death of the deceased, are under the age of eighteen [18] years, unless physically or mentally incapacitated.”

The testimony in the record is that decedent Lynn Bird Ellis, age 35, lived with his mother, age 63, his brother L. C. Ellis, age 41, his sister Frances Ellis, age 24 and her illegitimate child, Cynthia Scales, age 1. All of the witnesses testified that the mother Leona Ellis owned the home, paid the bills and ran the house. The mother’s only income was $51.00 social security. L. C. Ellis, who was crippled by polio, had some occasional earnings from “shade tree” mechanic work. His contributions to his mother would not exceed his own support. Frances Ellis was also a polio victim that decedent had helped to go to college at A. M. & N. in Pine Bluff for 2lA years. After the birth of her child she worked and contributed $15 to $20 each two weeks. However at the time of decedent’s death she was unemployed and living in the home without making contributions. Admittedly Frances took care of her daughter Cynthia when she was living in the home. Mrs. Leona Ellis took care of Cynthia when Frances was not there. Decedent contributed, according to his mother, $30 cash per month in addition to the personal items he bought for himself. Frank Ellis, another brother, testified that decedent purchased groceries for the family at his store each weekend for which he paid direct. All witnesses testified that decedent did not purchase anything special for Cynthia. Admittedly he did hold the baby some and play with her.

As can be seen from the foregoing statutes a niece or nephew, even though wholly or partially supported by a wage earner, does not qualify for compensation benefits under the statute unless they can be classified as a foster child. The parties in their briefs have sought and argued the definition of a foster child, relying upon cases having to do with persons standing in loco parentis and regulations and pronouncements of the Welfare Department. However it appears to us that one becomes a “foster child” when another person becomes a “substitute parent”. Thus we cannot say under the record here there was no evidence to sustain the Commission’s finding that Cynthia Scales was not a dependent and foster child for purposes of compensation benefits.

Appellees cross-appeal and contend that the Commission erred in finding that Leona Ellis, the decedent’s mother, was 50% dependent upon the decedent at the time of his death. We find no merit in this contention. It was stipulated before the referee that the mother was partially dependent.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    John Donald FRY v. Charles B. FREEMAN, Ex’r
    5-5649
    473 S.W. 2d 906
    Opinion delivered November 22, 1971
    [Rehearing denied January 10, 1971.]

      John O. Maberry and Merrill L. Norton, for appellant.

      Lewis E. Epley, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to a will contest, appellant, John Donald Fry, a son of William W. Fry, deceased, contending that the overwhelming preponderance of all substantial evidence before the court revealed that the father suffered from an insance delusion toward appellant which motivated the testator to, in effect, disinherit the son. There are between 355 and 360 pages of testimony in the record, but there is no abstract of the testimony of any of these witnesses. We have stated in numerous cases that it is not practical for the seven members of the court to examine the one record filed here, and under Rule 9 (d) of the rules of the court, the burden is on appellant to furnish an abstract that will give the various members of the court an understanding of the question, or questions, presented. Pyramid Life Ins. Co. v. Hamilton, 237 Ark. 797, 376 S. W. 2d 555; Financial Security Life Assurance Co. v. Birtie L. Powell, 247 Ark. 609, 447 S. W. 2d 64. Of course, appellant’s case is dependent upon the testimony, and since appellee did not supplement the record, we are unable to consider the case on its merits.

Affirmed.


text:
    Paul MOORE et al v. STATE of Arkansas
    5611
    472 S.W. 2d 940
    Opinion delivered November 22, 1971

      R. H. Hixon, Donald Goodner and Donald Poe, for appellants.

      Ray Thornton, Attorney General; Fred H. Harrison, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellants, Billy E. Hutson, Paul Moore, Larry Cunningham, Johnny Wayne Cunningham and Dorothy Lois Moore Little, appeal from a judgment wherein Hutson, Moore and Larry Cunningham were convicted of the crimes of burglary and grand larceny, being sentenced to two years for burglary and one year for grand larceny, and Johnny Wayne Cunningham and Dorothy Lois Moore Little were convicted of grand larceny, being sentenced to one year each. The information charged the first three with breaking and entering a building owned by Sam Rice with the felonious intent to commit grand larceny, and the larceny count charged all appellants with stealing $93.75 in cash and ten cases of Budweiser beer. For reversal, the principal argument is that the evidence is insufficient to sustain the convictions, more specifically, that there is a lack of corroborating testimony of the evidence given by Mary Shifflett, an accomplice.

Sam Rice, owner of Sam’s Tavern, testified that he left his place of business about 12:30 (early morning) on November 11, and returned about 10:00 a.m.; that $50.00 in bills and $90.00 in change had been taken, together with approximately ten cases of beer, which he described as "An unusual brand of beer and that was the type of beer that was missing”. Rice said that a window was broken out on the south end of the building, and that the back door was open. He did not know the appellants and had never seen any of them at his place of business. Trooper Bernard Young of the State Police corroborated the fact that the window was broken and the door was open. Mary Shifflett, 13 years of age, who was not prosecuted, apparently because of her age, testified that she joined the defendants at Mansfield, Arkansas. She said that it had been prearranged for her to be picked up there and that she got into the front seat of the Chevrolet automobile between Jeffery Plowman, driver of the car, and Johnny Cunningham; that this occurred about 11:50 p.m. Miss Shifflett stated that they drove around, bought gas and drove to Paris. She said that she did not see anybody on the street and that they drove near the tavern which she identified by a sign. On the street back of the tavern, the car was stopped and Hutson got out. When asked if there was any discussion about breaking into the tavern before it happened, the witness stated that she heard conversation about breaking in, and that all appellants were present in the car at that time; however, she never did relate the conversation or identify those who took part in it. She said, “They were going to get some beer. I didn’t know they were going to get any money”. After Hutson left the car, Miss Shifflett stated that the rest all drove off, rode around for awhile, and then came back and picked up Hutson; that he had money and a case of beer. She said Hutson stated that he “got the door open and broke a window”; that she didn’t know what he used except “they were going to use this thing called a tire tool”. She said she got some of the change in nickels. According to the witness, the case of beer was placed in the back seat on the floor of the car, uncovered; they then drove around for awhile, came back, and let Moore and Larry Cunningham out at the tavern. The rest continued to ride around in the city until they were stopped by Officer Graham of the City Police around 3:30 a.m., who then took all occupants of the car to the police station. The length of time they were kept at the station varies with the testimony all the way from 30 minutes to a couple of hours. After they were released, Miss Shifflett said that these appellants drove back to the tavern but Moore and Larry Cunningham were not there, and never did get with them again; however, they saw five cases of beer “by the building behind the tavern”, picked it up, and drove on back to Mansfield. Miss Shifflett testified that she placed her nickels in the truck of a friend, Diana Joyce.

State Police Trooper Troy Oliver questioned Dorothy Lois Moore Little in the jail, after she had waived her rights under the case of Miranda v. Arizona, 384 U. S. 436. The trooper’s evidence is not easy to follow since he stated that she made one statement, and then corrected it by making another, and it is difficult to definitely determine which facts were first given, and which facts were stated in correction. However, after a detailed study of the testimony, it appears that appellant (according to the officer) first stated that Moore and Larry Cunningham did not go to Paris with the other members of the group; subsequently, she said they were originally in the car but a man by the name of Tom Black was taken to Huntington; they then returned through Mansfield where Moore and Larry Cunningham left the car, and the others drove on to Paris. Oliver testified that Mrs. Little said the other appellants and Mary Shifflett went on to Paris; that Little had a date with Hutson and Shifflett had a date with Plowman; that after they arrived in Paris, Hutson got out of the car while they waited, and returned later with a case of beer and a large quantity of change. This was as far as Oliver detailed her statement, the officer then simply stating that with the difference that Mrs. Little said Moore and Larry Cunningham did not go to Paris, her statement was almost identical with that of Mary Shifflett. On trial, Mrs. Little testified that Moore and Larry Cunningham did go to Paris but got out of the car almost as soon as they arrived to answer a call of nature, and these two were not with the others in Paris the rest of the night; on the way home the group in the car picked up Moore and Larry Cunningham, who were hitch-hiking a ride back to Mansfield.

All the defendants, except Hutson and Larry Cunningham, denied having anything to do with the break-in at the tavern, and denied taking any beer or money. These two did not testify.

What are the applicable rules of law concerning a conviction based upon the testimony of an accomplice? In Pitts v. State, 247 Ark. 434, 446 S. W. 2d 222, we said:

“There is no dispute about the applicable rules of law. Under the statute a conviction for a felony cannot be had upon the testimony of an accomplice 'unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof’ Ark. Stat. Ann. § 45-2116 (Repl. 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, ‘if the testimony of the accomplice is eliminated from the case’, the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 (1943).”

Right off, it is apparent that there is no corroborating evidence to sustain the convictions of Moore and Larry Cunningham. No officer, state or city, even saw these two men on the night in question, and the only testimony that implicates them is that of Mary Shifflett, who said they were let out at the tavern, and subsequently, the others, returning from the police station, saw five cases of beer in back of a building next to the tavern, the inference being that the cases were placed there by these two appellants. This testimony, even if given by a party who was not an accomplice, would not have been sufficient to convict, but certainly when given by an accomplice, and uncorroborated by other testimony “tieing in” these appellants, such evidence was insufficient.

The evidence against the other men is not much stronger for even in the case of Hutson, he was only implicated by Mary Shifflett, and Dorothy Lois Moore Little who, under the state’s theory, was likewise guilty and was therefore an accomplice, and the testimony of two accomplices is not better than the testimony of one. What did the state actually prove? Disregarding the testimony of the accomplices, it was established that all appellants, except Larry Cunningham (Moore admitting his presence), were in the City of Paris on the night in question, and all except Larry Cunningham and Moore were in the vicinity of the tavern. It was established by the state that a burglary had been committed by someone and money and property taken that belonged to Sam Rice. But no beer was ever seen by any officer, or other person, and this despite the fact that Officer Graham had stopped the car and ordered it to proceed to police headquarters; according to Mary Shifflett, a case of beer was on the floor against the back seat in plain view. Officer Graham said that he did not look into the car and none of the parties appeared to have been drinking. Though Mr. Rice testified that $50.00 in bills and $90.00 in change had also been taken, no one every found any money in the possession of appellants; in evidence, there is only the $.75 which Miss Shifflett stated she obtained from the burglary. In other words, when we eliminate the testimony of the accomplice (or accomplices) there is no independent evidence establishing the connection of the men with the commission of the offense. No more was established than a suspicion of guilt occasioned solely by the fact that these appellants were riding around in Paris in the wee hours of the morning and somebody committed a burglary. This is not a sufficient connection, for a suspicion of guilt is not enough.

The only conviction in which there is a question of whether the evidence was sufficient, is that of Mrs. Little. This is true because of the testimony of Trooper Oliver relative to the admissions of this appellant. But this evidence is far from satisfactory, for the officer, after quoting Mrs. Little’s statement with reference to the trip to Paris, and Hutson getting out of the car and returning with beer and money, went no further with the details of her remarks, but only said that her statement was “almost identical” with that of Mary Shifflett. Of course, one discrepancy in the two statements is at once apparent for Mrs. Little mentioned a Tom Black who was taken to a service station in Huntington before the group went to Paris, and this fact was not mentioned by Miss Shifflett. We are not satisfied to sustain .a conviction simply on the basis of testimony that the balance of Mrs. Little’s statement was the same as Miss Shifflett. For instance, did Mrs. Little obtain any money or beer? Mary Shifflett said that she (Shifflett) obtained $.75, but she also said that Little did no more than the witness —which was to sit in the car. Did Mrs. Little represent to Trooper Oliver that she heard persons in the car discuss the proposed burglary prior to its commission? These are important questions with reference to Mrs. Little’s guilt and should have been more thoroughly explored.

There is also an additional matter that should be mentioned. Trooper Oliver testified that when he talked with Mrs. Little at the jail, he did not orally give the warnings required by Miranda but rather handed her a typed paper explaining her rights, and then waiving the right to an attorney. This instrument is here reproduced in full by a footnote.

This warning, as far as an indigent prisoner is concerned, is defective for it contains the statement “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court”. This does not comply with Miranda. In that case, the court said:

“This does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation [Our emphasis].”

This language speaks for itself and it follows that the waiver does not meet the standard required if the person being interrogated is an indigent. The record reflects that Hutson had an attorney appointed for him, but there is no indication that the attorney representing the other appellants was appointed rather than retained by the individuals. At any rate, since this case is being reversed, that fact should be determined if there is another trial.

It is complained that the court erred in refusing to give an instruction requested by appellants relative to the offense of receiving stolen property. Appellants were not charged with that offense, could not have been convicted of it under the information filed against them, and there was thus no need for such an instruction. It is also asserted that error was committed when the prosecuting attorney, while making hs closing argument, referred to the defendants as “Thugs” and “Rough-necks”. The trjal court instructed the jury that they should give no consideration whatsoever to the term given by the prosecuting attorney in describing appellants, and he admonished the prosecuting attorney on the language used. There was no basis for a mistrial.

In accordance with what has been said, the judgment of conviction for all appellants is reversed and the cause remanded to the Logan County Circuit Court.

It is so ordered.

      No evidence was ever offered as to the brand name.

      Plowman, a non-resident of this state, has never been apprehended.

      Diana Joyce testified that she found $.75 worth of nickels in the truck.

      This name was not mentioned by any other party or witness.

      Mary Shifflett denied having a date with anybody.

      There is an interesting fact which was not fully developed. Appellants were accused of stealing ten cases of Budweiser beer, a very well known brand, but Mr. Rice testified that the type of beer missing was “an unusual brand”. Of course, it was not necessary in the Information to designate the brand name, but since it was done, and in view of Rice’s testimony, the matter should have been developed further.

       “YOUR RIGHTS
      Before we ask you. any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop at any time until you talk with a lawyer.
      WAIVER
      I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.
      SIGNED (s) Dorothy Little ”


author: George Rose Smith, Justice.

text:
    Kenneth RIMMER v. STATE of Arkansas
    5644
    472 S.W. 2d 939
    Opinion delivered November 22, 1971

      L. K. Collier, for appellant.

      Ray Thornton, Attorney General, for appellee.
   George Rose Smith, Justice.

On October 3, 1960, the appellant pleaded not guilty to two charges of forgery, and an attorney was appointed for him. One week later the appellant, with the advice of counsel, changed his plea to guilty and was sentenced to imprisonment for two years upon each charge. The sentences have not yet been completely served, owing to a parole and to other convictions in Arkansas and Michigan.

This appeal is from an order denying postconviction relief under Criminal Procedure Rule 1. In his petition the appellant asserted as grounds for relief that the officers had arrested and searched him without a warrant or probable cause and that he was not informed of his right to counsel at the time of his arrest.

We find no merit in either contention. The plea of guilty, which is not shown to have been coerced, had the effect of waiving defenses that might otherwise have been interposed. McMann v. Richardson, 397 U. S. 759 (1970); Brady v. United States, 397 U. S. 742 (1970). The petitioner’s asserted right to be provided with counsel at the time of his arrest arises from the Supreme Court’s holdings in Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), but the court has explicitly held that those two decisions are not to be applied retroactively. Johnson v. New Jersey, 384 U. S. 719 (1966). Since the petitioner’s arrest occurred some years before either Escobedo or Miranda was decided, we find no violation of his constitutional rights in this case.

Affirmed.

Fogleman, J. not participating.


author: Lyle Brown, Justice.

text:
    William Leon WALLACE, Jr. v. STATE of Arkansas
    5654
    473 S.W. 2d 184
    Opinion delivered November 22, 1971

      Ernest Eudox Patterson, for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This is an appeal from an order denying appellant’s petition for a writ of error coram nobis. Appellant contends the writ should have been granted because (a) he was without counsel, (b) he was not intelligently capable of waiving his right to counsel, and (c) he was not intellectually capable of understanding the effects and consequences of his plea of guilty.

The official docket sheet shows that appellant was charged with forging a check and uttering the same; that he was sent to the State Hospital for observation and no psychosis was found; that he entered a plea of guilty in August 1954 and was sentenced to the penitentiary for a term of five years, sentence being suspended during good behaviour. The docket does not show that appellant was represented by an attorney at either arraignment or sentencing.

With regard to the petition for writ of error coram nobis it appears to have been mailed to the clerk of the circuit court and there received on August 9, 1971. Three days later the petition was by the court summarily denied. So far as the record reflects the appellant was not present in person or by counsel. No testimony was taken either for the State or the appellant.

On appeal the State urges us to sustain the denial of the writ on the ground that the imposition of a suspended sentence is not a final judgment and therefore no appeal lies. The fallacy of that argument is that this is not an appeal from the imposition of a suspended sentence; it is an appeal from the denial of the petition for writ of error coram nobis. Such judgment is appealable. Martinez v. State, 419 S. W. 2d 369 (Texas 1967); Johns v. Warden, 124 A. 2d 283 (Md. 1956); Wilson v. State, 155 So. 2d 611 (Ala. 1963); People v. Girard, App., 93 Cal. Rptr. 676 (1971).

Appellant made a prima facie showing that he was not afforded benefit of counsel. That showing is established by the utter silence of the record in that regard. Nor is there any indication that he waived an offer of counsel. Then there is the allegation that appellant was not capable of understanding the consequences of a plea of guilty. In that regard it is significant that the trial judge committed the appellant for mental observation. We are not saying the silence of the record as to counsel and the suggestion of mental incapacity is conclusive on either point. What we are saying is that the state of the record which we have just described raises serious questions as to whether appellant was afforded all his constitutional rights. Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204 (1956). The granting of the writ requested does no more than afford appellant a hearing on whether those rights were violated. That is one of the purposes served by the writ of error coram nobis. Dement v. State, 236 Ark. 851, 370 S. W. 2d 191 (1963).

We have also considered the question of whether appellant’s proper remedy is under our Rule I. That rule is only for the benefit of a prisoner in custody under sentence of a circuit court. Therefore the only relief left to appellant is by petition for a writ of error coram nobis. Although rarely used, especially since the adoption of Rule I, the writ is still recognized in appropriate cases. See Walker v. State, 251 Ark. 182, 471 S. W. 2d 536 (1971). We would also point out that the denial of the writ without a hearing has been held erroneous. Hydrick v. State, 104 Ark. 43, 148 S. W. 541 (1912).

The trial court is directed to reinstate the petition and afford appellant a reasonable opportunity to be heard.

Reversed and remanded.

Fogleman J., not participating.

Harris, C. J. and Byrd, J., dissent.


author: John A. Fogleman, Justice.

text:
    Robert J. MOBLEY v. STATE of Arkansas
    5632
    473 S.W. 2d 176
    Opinion delivered November 22, 1971

      R. W. Raster, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of obtaining property from Cash Wholesale Company under false pretenses on December 1, 1969. He contends that the circuit court committed reversible error when it refused to permit Otis Green to testify on behalf of appellant. We agree.

The evidence on behalf of the state showed that a man who represented himself to be James Higgins appeared at the Cash Wholesale Company on December 1, 1969, at approximately 11:00 a.m., and placed a substantial order as the purported representative of Salem Furniture Company. As a part of the transaction, 30 watches were delivered to Higgins, but the salesman told him that the balance of the order could not be picked up until 2:30 p.m. The real purpose of the delay was to allow time for a credit investigation. Investigation disclosed that the address given for Salem Furniture Company in Little Rock was a false one and no such company could be located in Little Rock. The salesman said that appellant Mobley was the man who represented himself as Higgins but that his hair was sandy brown on that date, unlike its color on the day of trial. Another salesman corroborated this identification, but said that on December 1, 1969, the man who called himself Higgins had sandy blond hair and did not wear glasses.

After the state completed its evidence in chief and rested, the court was recessed for lunch. When the court reconvened, appellant’s attorney called Otis Green to the witness stand, and the circuit judge observed that he had been in the courtroom all morning. Appellant’s attorney replied that he had caused a subpoena to be issued for this witness during the noon recess. When the witness admitted that he had been in the courtroom all morning, and had heard all the testimony in the case, the judge ruled that he could not testify.

By proffer, it was shown that Green would state that he saw appellant before noon on December 1, 1969, and again at 2:30 p.m. on the same date, that he was the prosecuting witness against Mobley on a charge relating to the taking of money by Mobley on that day, that he had known Mobley for four years and that the appellant’s hair was neither blond nor red on that date, and also would state that he had been subpoenaed during the lunch recess.

Another witness testified that he had known appellant 25 years, and knew that his hair was neither blond nor red on December 1, 1969. Mobley testified that he never went without glasses and hád never dyed his hair and that Green knew that his hair was not dyed on December 1, 1969.

While appellant contends the invocation of the rule for sequestration of witnesses is not disclosed by the record, it does appear that the circuit judge had earlier referred on two occasions to the state’s witnesses being “under the rule.” It usually lies within sound judicial discretion whether a witness, who hás been in the courtroom in spite of a rule excluding witnesses therefrom, should be permitted to testify. Appellant’s attorney stated that he was not aware of Green’s presence in the courtroom or his identity until the noon recess. His statement went unchallenged.

The issue in this case turned upon the identity of the perpetrator of the fraud and appellant’s claim of alibi. In virtually identical circumstances, we held that refusal to permit such a witness to testify was an abuse of discretion, even though the testimony would have only been corroborative of that of another witness. Harris v. State, 171 Ark. 658, 285 S. W. 367. Appellant’s argument on this point is even stronger than was that of Harris, because Green could hardly be expected to be favorably disposed toward appellant. We must reverse this judgment for the abuse of discretion in not permitting Green to testify.

Appellant’s request that he be permitted to withdraw certain documents purportedly signed by him for the purpose of making and procuring comparisons with his own handwriting was not made until after trial for the purpose of his motion for new trial. Although there was no abuse of discretion in the denial of this request made at that time, appellant made the denial a ground for his motion for new trial and advanced the point on appeal. Obviously, this point will arise on retrial, so we must consider it.

This particular question has never been presented to this court. We have no statute governing discovery in criminal cases, and we have held the civil discovery act inapplicable. Edens v. State, 235 Ark. 996, 363 S. W. 2d 923. But we recognized long ago that there are circumstances in which an accused may be entitled to examine and inspect documentary evidence in possession or under the control of the prosecution, when it is admissible in evidence. Jones v. State, 213 Ark. 863, 213 S. W. 2d 974. It is rather generally recognized that a trial court has discretionary power, even in the absence of statute, to permit inspection of relevant, material, admissible evidence in the prosecutor’s possession and control, but not his work product, whenever necessary for a fair trial or in the interest of justice. 7 A. L. R. 3d 8, 19, 36, 57.

In considering this problem in People v. Supreme Court, 245 N. Y. 24, 156 N. E. 84, 52 A. L. R. 200 (1927) the revered Justice Cardozo, after reviewing Rex v. Holland, 4 Durn. and E 619, decided in 1792 — a case which he called the point of departure as the subject relates to criminal cases — and after emphasizing the fact that examination of the report in question was denied in Holland, made these pertinent remarks:

Later cases exhibit a more conciliatory tendency where the document is one that may be received as an exhibit. Discovery will be ordered if the exhibit is the basis of the charge, as, e. g., where the indictment is for sending a threatening letter. Rex v. Harrie, 6 Car. & P. 105. Cf. People v. Bellows, 1 How. Pr. N. S. 149. There is some authority for the view that it will be ordered in other cases where the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. Thus, in Reg. v. Spry, 3 Cox, C. C. 221, an inspection of the contents of the stomach was permitted in a prosecution for homicide. In People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636, a county treasurer charged with defalcation was held to have the right to inspect official books and documents. In Com. v. Jordan, 207 Mass. 259, 93 N. E. 809, a prosecution for murder, there was recognition of the power to permit an inspection of portions of the body taken at the time of the autopsy by the medical examiner and also weapons and other exhibits in the possession of the public prosecutor, though the court refused the order in the exercise of discretion. Other cases point the same way with more or less distinctness. See, e. g., Newton v. State, 21 Fla. 53; Daly v. Dimock, 55 Conn. 579, 12 Atl. 405; State v. Howland, 100 Kan. 181, 163 Pac. 1071. The power frequently asserted to compel the return of property illegally impounded is based upon the assumption of a supervisory jurisdiction over the acts of public prosecutors. Weeks v. United States, 232 U. S. 383, 398, 58 L. Ed. 652, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; People v. Chiagles, 237 N. Y. 193, 199, 32 A. L. R. 676, 142 N. E. 583. Cf. Kenny, Outlines of Criminal Law, 477, citing Reg. v. Puddick, 4 Fost. & F. 497. There may be something of kinship here to the power to compel inspection in furtherance of justice. Argument earnestly upholding the latter jurisdiction, though conceding much authority against it, will be found in Mr. Wigmore’s Treatise. 3 Wigmore, Ev. §§ 1859g, 1863. Cf. 2 Bishop, New Crim. Proc. 2d ed. § 959d. There are pronouncements, however, to the contrary in the works of learned commentators. 2 Russell, Crimes, 1985, 2096, 2098; 9 Laws of England (Halsbury) p. 387, § 152; cf. State v. Howard, 191 Iowa, 728, 183 N. W. 482.

Later the inherent power of the courts to permit inspection and examination by a defendant in criminal cases of documents or other admissible evidence in the furtherance of justice was recognized in the New York courts. See, e. g., People v. Christiano, 53 Misc. 2d 433, 278 N. Y. S. 2d 696 (1967); People v. Nassar, 60 Misc. 2d 27, 301 N. Y. S. 2d 678 (1969); People v. Calandrillo, 215 N. Y. S. 2d 361 (1961). This inherent power has also been recognized in other states. See, e. g., State v. Wade, 83 S. D. 337, 159 N. W. 2d 396 (1968); State v. Gilman, 63 Wash. 2d 7, 385 P. 2d 369 (1963). Such cases recognize that the granting of such a motion by a defendant is not a matter of right but that it lies within the sound judicial discretion of the trial court, the exercise of which will not be disturbed on appeal unless there is an abuse. They also recognize that the right is . not unlimited. See, e. g., People v. Serour, 63 Mis. 2d 852, 313 N. Y. S. 2d 621 (1970). Inspection and examination should be granted whenever injustice might result if they are denied. See People v. Nassar, supra. It is particularly appropriate where examination by experts is needed. People v. Christiano, supra; State v. Gilman, supra. Appropriate considerations in the exercise of the court’s discretion are stated in some of the cases cited above. In State v. Gilman, supra, the court said:

Judicial discretion to grant or to deny the examination of the state’s files in a criminal case is compounded of many things, among which are: timeliness of the application; time and opportunity of the defendant to prepare for trial; reactions and attitudes of witnesses if interviewed before trial; indications of prior inconsistencies in the testimony; surprise at the trial, which reasonable diligence in preparation would not have avoided; reasonable opportunity for examination and experiment by experts consistent with the preservation of the evidence; a clear showing of real danger to and concern for the personal safety of witnesses; needless damage to reputation; financial inability of the defendant to obtain technical and investigative aid; and any other considerations, the denial of which shows an unfair deprivation or the granting of which supports the ideal of substantive due process — all, of course, to be considered in keeping with the responsibility of the trial judge to control the pace of the trial and keep it moving at reasonable speed to its conclusion.

In State v. Wade, supra, these statements are appropriate:

A general hunting or fishing license should ordinarily not be granted and the time, place, and manner of making the inspection permitted or discovery allowed should be specified. It should ordinarily be confined to relevant, tangible or written evidential matters and should be denied whenever (1) there is danger or likelihood of witnesses being coerced, intimidated, or bribed; (2) the State may be unduly hampered in its investigation, preparation, and trial of defendant’s case or of other related criminal cases; or (3) other evil or danger to the public interest may result from' inspection or disclosure.

We think that these authorities state proper guidelines.

Inasmuch as the documents involved are a part of the alleged false pretenses- and the identity of the perpetrator of the fraud in the principal issue, inspection and examination of the exhibits introduced in the first trial (and any other such exhibits under the control of the prosecution) by a handwriting expert obtained by appellant should be permitted, under whatever restrictions may be necessary to preserve their integrity.

The judgment is reversed and the cause remanded for a new trial.

      Our holding in Jones v. State, supra, could only have beén based upon this inherent power.


text:
    WORTHEN BANK & TRUST COMPANY v. UNITED UNDERWRITERS SALES CORPORATION of America et al
    5-5640
    474 S.W. 2d 899
    Opinion delivered November 22, 1971
    [Rehearing denied January 24, 1972.]

      Wright, Lindsey if Jennings, for appellant.

      Pope, Pratt, Shamburger, Buffalo if Ross, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Worthen Bank 8c Trust Company from an adverse decision of the Pulaski County Circuit Court in a suit by Worthen on some promissory notes.

United Underwriters Sales Corporation of America, a foreign corporation, obtained a loan from Worthen and gave its note direct to Worthen. James M. Williams, Joe Mangiapane and Charles Selman gave their separate personal notes to United and United assigned these notes to Worthen as collateral security for the payment of its note direct to Worthen. Williams, who was the president of United, also executed a personal guaranty agreement as additional security for the payment of the loan by United. United defaulted on the payment of its note and Worthen sued on all the notes as well as the guaranty agreement. Williams had died in the meantime and his estate was made a party defendant on the guaranty agreement.

A jury was waived and the case was tried before the judge sitting as a jury. The court found that United is a foreign corporation organized under the laws of the State of Virginia, and that it was doing business in the State of Arkansas at the time its renewal note to Worthen was executed on February 28, 1968. The court further found that United was not authorized to do business in the State of Arkansas and that Worthen is not entitled to recover from the defendants, Joe Mangiapane and Charles Selman.

A joint and. several judgment was entered in favor of Worthen against United on its note direct to Worthen and against Williams’ estate on the separate personal guaranty executed by Williams, but in paragraph three of the judgment the court recited: “The promissory notes of defendants Joe Mangiapane and Charles Selman which were assigned to plaintiff are unenforceable by plaintiff and void ab initio.” On appeal to this court Worthen relies on the following points for reversal:

“The trial court erred in entering a judgment in favor of defendants Joe Mangiapane and Charles Selman because:
A. The amended answer of Charles Selman and Joe Mangiapane was struck by the trial court and these defendants thereby failed to affirmatively allege or assert the provisions of Ark. Stats., § 64-1201 et seq., or the failure of United to qualify in Arkansas as a defense.
B. There is no proof in the record that United was required to qualify to do business in the State of Arkansas.
The promissory notes executed by defendants Joe Mangiapane and Charles Selman are not void and plaintiff is entitled to maintain an action and recover thereon against the obligors.
The decision of the Supreme Court of Arkansas in Pacific National Bank v. Hernreich, 240 Ark. 114, 398 S. W. 2d 221 (1966) should be (a) overruled, or (b) judicially limited to its facts, or (c) distinguished from the instant case and the judgment of the trial court reversed.”

We are unable to fully treat the first two points relied on by Worthen for the reason that we are unable to tell from the record before us what disposition the trial court finally made of the amended answer of Selman and Mangiapane, and we are unable to tell from the record before us whether United was doing business in the State of Arkansas. We find no evidence in the record that it was, and we find no evidence in the record that it was not.

As to the amended answer to the complaint, the record indicates that the complaint was filed on February 27, 1970; that on March 23 and March 25 respectively, Selman and Mangiapane filed their separate answers simply denying the material allegations stated in the complaint and reserving their right to plead further in the matter. The record indicates that the case was set for trial on November 23, 1970, and on that date Selman and Mangiapane filed an amended answer reasserting their general denial to the original complaint and alleging several affirmative defenses, including one set out in paragraph five of the amended answer as follows:

“Answering further these defendants state that the instruments labeled Exhibits ‘C’ and ‘D’ are void for the reason the United Underwriters Sales Corporation of America is a foreign corporation which is not and has never been authorized to do business in the State of Arkansas under the provisions of Arkansas Stats. Annotated § 64-1201, et seq. Therefore, said instruments are unenforceable under the provisions of said statute.”

Ark. Stat. Ann. § 64-1201 (Repl. 1966) sets out the acts and procedure to be done and followed by foreign corporations before they may do business in the State of Arkansas, and § 64-1202 prescribes the penalties for doing business in the state without qualifying under § 64-1201. Section 64-1202 provides a fine for noncompliance and in addition provides as follows:

", . . as an additional penalty, any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can be enforced by it either in law or in equity, and the complying with the provisions of this act after" the date of any such contract, or after any suit is instituted thereon, shall in no way validate said contract.”

Returning now to the action taken by the trial court relative to the amended answer; when the case was called for trial, the record reveals in-chambers proceedings as follows:

“THE COURT: I think the record should reflect that an Amended Answer of Charles Selmari and Joe Mangiapane was filed in the office of the Circuit Clerk on the morning of November 23, 1970; that the case was set for trial on said date. That it is the Court’s understanding that Mr. Rather is moving that the amended pleading be stricken and the Court grants such motion.
MR. BUFFALO: If the Court is sustaining the motion I would have to move for a continuance. These are the defenses that these men are entitled to bring out.
THE COURT: You mean by reason of the filing of the Answer this morning?
MR. BUFFALO: Frankly I’m surprised that Mr. Rather is objecting because of the discussion we had last week.
THE COURT: If he told me — this Court — that he was not prepared to defend on these new issues I think of my own motion would say that lawyers must — and I am not criticizing you but this is true with many lawyers — they must join the issues and be prepared to try the cases on the day they are set. We have an Answer filed back in March and here it is November and if Courts don’t assert themselves and cause people, litigants, to litigate cases on the day set the public generally has every right to be critical whether it be criminal or civil.
MR. RATHER: I want to make sure because I don’t want to be unfair and I don’t want to be in the position of taking advantage, so let me say this. I will grant as I recall Friday we talked about this on the telephone and did you tell me at that time that you intended to file an Amended Answer?
MR. BUFFALO: I am not upset.
MR. RATHER: Okay.
[Reporter asked to get off record at this point as discussion continues between counsel.]
MR. RATHER: Your Honor, we have one thing further and that is I would like to move the Court to strike from my Complaint the second sentence in the first paragraph of the Complaint which states defendant United Underwriters Sales Corporation of America is a foreign corporation with its principal place of business in Norfolk, Virginia.
MR. BUFFALO: We object to any such amendments as that.
MR. RATHER: That’s not a necessary allegation. All of these jurisdictional allegations as far as I know are not necessary in any pleading and it certainly doesn’t give the Court any jurisdiction in this case and I move to strike that allegation.
THE COURT: All right. I am not passing on it. He’s made his record. I don’t know where we’re going on any of it. Take that under advisement along with all of the other facets.”

During the course of the trial there was placed in evidence as defendants’ exhibit 2, a certificate from the Secretary of State of Arkansas certifying that United Underwriters Sales Corporation of America is not a qualified corporation, not having met the requirements governing all the corporations of this state, and that said corporation has never been issued a certificate of authority to do business in Arkansas.

At the close of all the evidence, the record recites as follows:

"MR. BUFFALO: I would like to make one motion at this time. I’d like to ask that the Answers be amended to conform to the proof entered into evidence today.
MR. RATHER: We have no objection to that with the exception of the fact that you have previously ruled on the Amended Answer and we would request the Court to continue with that ruling as applies to paragraph 5 of the Amended Answer.
THE COURT: Regardless of what is in the pleadings, now by ageement we have got an exhibit captioned Defendant’s Exhibit 2 which supplies proof which supports and substantiates the allegations so I really think we’re dealing in technicalities now.”

Worthen contends that the trial court struck the amended answer. But, Worthen argues that even if it waived its objections to the first four paragraphs of the amended answer, it is clear that the court did not change its initial ruling concerning paragraph five of the amended answer. Selman and Mangiapane argue just as earnestly, that it is clear the trial court regarded the pleadings as amended to conform to the proof offered in evidence without objections. Perhaps the trial court’s intentions would be much clearer to us if we knew what conclusions were reached in the off-record discussion, but from the trial court’s comments following the off-record discussion as well as the court’s comment in connection with the motion to conform, it is not clear to us what the court intended.

We have not overlooked the exhibits indicating that mail was directed to United at an address in West Memphis, Arkansas, nor have we overlooked some evidence tending to indicate that some of the notes as well as some alleged “buy back” agreements were executed in Arkansas. This court has said that a corporation is doing business in the State of Arkansas within the meaning of the above statute when it transacts some substantial part of its ordinary business in this state, and that since the statute is highly penal it should not be invoked except in cases where the evidence warrants a belief that the corporation is, in fact, doing business within the state. Murray Tool & Supply Co. v. State, Use Crawford County, 203 Ark. 874, 159 S. W. 2d 71. We are simply unable to find any evidence in the record from which we can determine whether United was or was not doing such business in Arkansas so as to bring it within the purview of §§ 64-1201 and 64-1202, supra.

Since we must remand this case because of the insufficiency of record as above set out, we are unable to pass on the main issue as to whether the two notes signed by Selman and Mangiapane were void ab initio. We conclude, however, that since the appellant’s third point will likely arise on retrial, the question it raises should be answered now. The appellant, Worthen, argues that we should reverse or modify our opinion in Pacific Nat’l Bank v. Hernreich, 240 Ark. 114, 398 S. W 2d 221, or that we should at least limit our holding to the facts of that particular case. The appellees argue that our holding in Hernreich is sound and that it should be reaffirmed in this case.

As far back as 1918 in the case of Hogan v. Intertype Corp., 136 Ark. 52, 206 S. W. 58, this court said:

“Under section 2, Act 313, Acts 1907, a contract made by a foreign corporation without complying with the laws can not be enforced by it either in law or in equity. It is insisted by appellee that the enforcement thereof applies to the corporation taking the paper and not to its assignee. In this case, the plaintiff is an assignee of the original seller or taker of the paper. This very narrow and limited construction of the statute would render it nugatory. Under this construction all foreign corporations doing business in this State would likely escape the penalty imposed by the statute. It was necessarily the intention of the Legislature to render any paper growing out of a transaction of this character defective so that it could not fall into the hands of an innocent purchaser and be enforced in this State. We think the notes and mortgage evidenced a contract made by the corporation in violation of the statute laws of the State. The defect was inherent in the notes and mortgage, and therefore a subsequent purchaser must take notice of the defect.”

Our holding in Hogan was affirmed the following year in Dean v. Caldwell, 141 Ark. 38, 216 S. W. 31, where we said:

“Under our statutes, not only the offending corporation, but its assignee is prohibited from maintaining suit in this State without having first complied with the laws of the State. Hogan v. Intertype Corporation, 136 Ark. 52.”

In the 1924 case of Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S. W. 785, oil lease contracts with an unqualified foreign corporation were involved and in that case we said:

“. . . The statute, however harsh its terms may be, is, as we have already seen, a valid and enforceable act. It provides, in express terms, that any foreign cor-oration which has failed to file its articles of incorporation or certificate as provided, cannot make any contract in this State which can be enforced by it, either in law or in equity.
Now it is evident that the plaintiff could not recover without introducing the contract under which it claims in evidence. * * * To allow it to recover by introducing in evidence a contract absolutely void under the statute would defeat the main purpose of the statute.” (Emphasis added).

It was not until 1966, in the case of Pacific Nat’l Bank v. Hernreich, 240 Ark. 114, 398 S. W. 2d 221, that we said in unequivocal language, that a contract made in violation of the statute is “not merely unenforceable but void ab initio.” In Hernreich we adopted the dicta expressed in Hogan, supra, in the following language:

“ ‘It was necessarily the intention of the Legislature to render any paper growing out of a transaction of this character defective so that it could not fall into the hands of an innocent purchaser and be enforced in this State. . . . [T]he notes evidenced a contract made by the corporation in violation of the statute laws of this State. The defect was inherent in the notes . . ., and therefore a subsequent purchaser must take notice of the defect.’ ”

We then continued in Hernreich as follows:

“The effect of this adoption is to render a transaction of this kind not merely unenforceable but void ab initio. Accordingly, there can be no holder in due course here of a negotiable instrument arising out of this illegal transaction.”

Our holding in Hernreich was reaffirmed as recent as March 29, 1971, in Union Planters Nat’l Bank of Tenn. v. Moore, 250 Ark. 272, 464 S. W. 2d 786, wherein we said:

“Little need be said about the fact that the provisions of Ark. Stat. Ann. §§ 64-1201 — 02 (Repl. 1966) are also applicable to the assignees of such an unenforceable contract. In Pacific National Bank v. Hernreich, 240 Ark. 114, 398 S. W. 2d 221, this court flatly held that there can be no holder in due course of a negotiable instrument arising out of a transaction which was illegal because an unlicensed foreign corporation was without power to enter into an enforceable contract in Arkansas. In so holding, we said:
‘It is settled law that assignees can receive no better rights than their assignors had. The strong language in the Hogan case is excellent — but is dicta. Thus it is apparent that this is really the first time this court has had occasion to rule directly on the question presented.
To reverse this case and permit enforcement of the notes here sued on would in effect repeal our penal statute prohibiting unlicensed foreign corporations from doing business in this state.’
We held that a transaction of this nature is not merely unenforceable but void ab initio.”

We reaffirm our holding in Hernreich and hold that a contract made in violation of Ark. Stat. Ann. §§ 64-1201— 02 (Repl. 1966) is not merely voidable or unenforceable by the offending corporation, but it is void ab initio insofar as the foreign corporation or its assignee is concerned. By the use of the phrase “void ab initio” we do not mean to imply that an unqualified corporation doing business in Arkansas may avoid its own liability under its contract made in this state. The purpose of the statute is not to permit such corporations to avoid liability under such contracts, but the purpose of the statute is to prevent such corporations from enforcing liability under such contracts. The purpose of our use of the phrase “void ab initio” is to insure against possible benefits to the offending corporation, by assignment or otherwise, and to put prospective purchasers or assignees on notice that such contracts, even when negotiable or valid on their face, are void and unenforceable even in the hands of what would otherwise appear to be a bona fide purchaser for value.

Reversed and remanded.

Byrd, J., not participating.