author: Frank Holt, Justice. Carleton Harris, Chief Justice,

text:
    Fred BRASCOMB Jr. v. STATE of Arkansas
    CR 76-231
    550 S.W. 2d 450
    Opinion delivered May 16, 1977
    (In Banc)

      Don Langston and Hubert Graves, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of delivery of heroin (Ark. Stat. Ann. § 82-2617 (a) (1) (i) [Repl. 1976]) and assessed his punishment at 15 years imprisonment in the Department of Correction. For reversal appellant first contends that “the court erred in refusing to let the defense introduce evidence of the arrangement of the undercover officer and one Billy Lincoln whereby Lincoln would be compensated for getting people to sell drugs to the undercover officer.” An undercover police officer, Morfey, arranged to buy heroin from appellant through James “Jazz-bone” Barnes, who was paid by Morfey for setting up drug buys. Appellant was arrested after two separate sales to Morfey procured by Barnes. Appellant’s defense was entrapment which Morfey denied. However, Morfey agreed that “James Barnes is not the only person [he, Morfey] had told that [he] would pay them money to bring people to [him] to buy from. ...” Further, “that if [Barnes] brought Fred Brascomb [appellant] to [Morfey] that according to [Morfey’s] agreement [Barnes] would get this kick back you’re talking about. ...” Appellant attempted to cross-examine Morfey about Billy Lincoln, another drug producer. Morfey admitted knowing him and that he was working for him.

Q. You never did pay Billy Lincoln to bring people to you?
A. That was done—
Mr. Fields: Your Honor, I’m going to object to the final question unless defense counsel can show that it is relevant to that.
Mr. Graves: Your Honor, what I’m trying to show is the entire operation or scheme of paying people to set other people up.

Appellant argues that evidence as to the activities of the state’s witness is permissible as relevant to proving appellant’s defense of entrapment. Entrapment is an affirmative defense. Ark. Crim. Code § 41-209 (1976). The state responds that any evidence with respect to Morfey and Lincoln is a collateral issue and, therefore, the limitation on cross-examination was proper. We cannot agree. In French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976), the contention was made that a contingent arrangement, which depended upon whether an informer made a case and how many arrests resulted, involved a collateral issue. In rejecting this contention and holding that an arrangement between an undercover agent and his informer was not a collateral issue, we said:

The same contention, now made by the State, was argued by the Government in Sorrells v. United States, [287 U.S. 435 (1932)]. In answer to the argument there that the defense of entrapment would lead to ‘the introduction of issues of a collateral character relating to the activities of the officials of the Government. . .,’ the court there stated: ‘The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused. . . .’

Here the defense was entrapment by the activities of a government official and, consequently, we are of thtí view that evidence sought by the cross-examination of the witness was not a collateral issue. Common justice requires that any evidence pertinent to the controlling issue of the defense, entrapment, should be permitted. Here appellant sought to show the course of conduct or activities utilized by the state’s witness in his undercover operations.

We next consider appellant’s contention that the trial court erred in giving instruction No. 5 which defiYied delivery of a controlled substance and then told the jury that if they believed beyond a reasonable doubt that the defendant committed the offense “you should find the defendant [appellant] guilty. ...” Appellant argues that the instruction, in effect, is binding and prejudicial since it omits his defense of entrapment. The state responds that another instruction, which immediately followed, supplied the omitted defense and no prejudice resulted. It appears that our cases are in conflict on these opposing contentions. Typical cases in support of the state’s position are Clingan v. State, 77 Ark. 141, 91 S.W. 12 (1906); Satterwhite v. State, 82 Ark. 64, 100 S.W. 70 (1907); Slaytor v. State, 141 Ark. 11, 215 S.W. 886 (1920); and Edwards v. State, 180 Ark. 363, 21 S.W. 2d 850 (1929). In the latter case we said:

As to the omission of the self-defense plea, the next instruction fully covers the subject, and we do not think the jury could have been misled on either proposition.

Typical cases in support of appellant’s position are Claiborne v. State, 51 Ark. 88, 9 S.W. 851 (1888); Davis v. Self, 220 Ark. 129, 246 S.W. 2d 426 (1952); Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304 (1948); Vaughn v. Herring, 195 Ark. 639, 113 S.W. 2d 512 (1938); Holmes v. Lee, 208 Ark. 114, 184 S.W. 2d 957 (1945); Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958); Whaley v. Crutchfield, 226 Ark. 921, 294 S.W. 2d 775 (1956); and Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967). In Miller we said:

It is inherently wrong to give an instruction which ignores a material issue in the case and allows the jury to find a verdict without considering the omitted issue. Such error cannot be cured by correct instructions separately given.

There we further said: “It is not unreasonable to believe that the jury gave considerable weight to this instruction.”

We have consistently discouraged the giving of a binding instruction “because of the impracticability of stating all the various propositions of law involved in one instruction” and courts, “should wherever possible, avoid the giving of binding instructions.” Moore v. State, 252 Ark. 526, 479 S.W. 2d 857 (1972). Further, it is significant, as we recognized there, that AMI Civil “does not contain a binding instruction.”

It seems that in civil cases we have consistently disapproved a binding instruction which omitted a material or vital issue. We have not consistently so held in criminal cases. It is difficult to understand the double standard. Certainly it must be said that a jury is as competent and perceptive in criminal cases as in civil cases. We observe that a Supreme Court Committee is presently drafting model instructions for use in criminal cases. No doubt, these model instructions will not contain a binding instruction which, as indicated, was carefully avoided by the Committee which drafted AMI Civil.

Because of the inconsistency in our cases with respect to binding instructions, we deem it necessary to hold that after the effective date of this opinion, we will reconsider the disharmony in our cases.

We have considered appellant’s two other contentions for reversal and find no merit in them. For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Harris, C.J., and Fogleman, J., dissent.

Carleton Harris, Chief Justice,

dissenting.

I disagree with the reversal in this case.

As to the first point relating to the attempt to interrogate Officer Morfey regarding the arrangements made with an “undercover” helper, Billy Lincoln, I simply point out that Lincoln was not involved in any way with the sale made by appellant Brascomb. Rather, the “contact man” in this transaction was James “Jazzbone” Barnes. Whatever agreement Morfey had with Lincoln was completely collateral to the entrapment issue since appellant admittedly had absolutely no connection or contact with Lincoln. Morfey was questioned fully about his arrangement with Barnes and the officer explained his agreement with Barnes and stated that the latter was paid.

I cannot see how the case of French v. State, 260 Ark. 473, 541 S.W. 2d 680, has any relevancy whatsoever to the facts in the present litigation. In French, the defendant testified that he was talked into obtaining the marijuana by an agent named Haas working on behalf of the government, and it was contended that Haas was paid by the Drug Enforcement Administration on a contingent fee basis, dependent upon the result in the case and the number of arrests effected. The defense attempted to call a special agent of the government to show the financial arrangement with Haas, which the trial court denied, and this court reversed. Now — let it be pointed out that French testified that Haas was the individual who talked him into getting the marijuana. Haas accordingly in that case, stood in the same position as "Jazzbone” Barnes in the present case, but it is not contended, even in the slightest, that Lincoln had anything at all to do with enticing Brascomb into making the heroin sale.

I would affirm the judgment.

Fogleman, J., joins in this dissent.

       Haas did not testify.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Oliver LEAK Jr. v. John M. GRAVES Jr. and STATE of Arkansas
    CR 77-6
    550 S.W. 2d 179
    Opinion delivered May 16, 1977
    (Division I)

      Camp & Griggs, by: Ronald L. Griggs, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson M. Jones, Asst. Atty. Gen., for appellees.
   Frank Holt, Justice.

Appellant, represented by court appointed counsel, pleaded guilty to three charges of burglary and grand larceny. His five year sentence on each charge was suspended conditioned on good behavior. Approximately a week later appellant appeared before the same court for plea and arraignment on a charge of robbery with a firearm which he allegedly committed four days following his probation. Appellant refused appointment of an attorney and entered a plea of guilty. The court revoked his three five year suspended sentences, ordered that they run concurrent and then assessed 21 years imprisonment for the robbery plus ten years (suspended) for commission of a felony with a firearm. Subsequently, appellant petitioned the trial court for post-conviction relief pursuant to Rule 37, contending that he was denied his constitutional right to counsel at the time of his guilty plea to robbery with a firearm. The court denied appellant’s petition. Appellant argues that even though he admittedly refused the court’s offer to appoint counsel, nevertheless the court erred in not appointing counsel to assist appellant in deciding whether or not he should waive counsel and plead guilty.

The trial judge took great pains to ascertain that appellant’s waiver of counsel was knowingly and voluntarily made. He ascertained that appellant was twenty-five years old with two years of college education. The court explained the charges against appellant and the possible penalties therefor, including revocation of his suspended sentences. Appellant stated that he understood the charges and penalties. The court advised appellant that since he had pleaded guilty to three felonies the preceding week, he was now subject to the habitual criminal statute with its enhanced penalties. Appellant also stated that he understood this facet of the proceeding. The court further explained the presumption of innocence, advised appellant of his right to remain silent, his right to a speedy trial and the cross-examination of witnesses. Appellant responded that he understood these rights.

The court also informed appellant of his right to an attorney free of cost. When asked if he wanted a court appointed attorney, appellant refused. The court again explained appellant’s right to counsel and further asked him if his refusal was “voluntary and of your own free will and that you just don’t want an attorney.” Appellant again refused appointment of an attorney. Appellant admitted that he knew the value of an attorney’s services and twice again refused the court’s offer. He told the court that he was guilty of robbery with a firearm and that he, also, had violated the terms of his recent suspended sentence. Appellant further stated that his plea was not the result of any threats or abuse.

A defendant in a criminal proceeding has a constitutional right to represent himself and a state has no right to force a lawyer upon him if he voluntarily and intelligently elects self-representation. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975); Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); LaPlante v. Wolff, 505 F. 2d 780 (8th Cir. 1974), cert. denied, 420 U.S. 995 (1975). The right to counsel is a personal right which the accused may knowingly and intelligently waive either at the pretrial stage or at trial. Burton v. State, 260 Ark. 688, 543 S.W. 2d 760 (1976); Evans v. State, 251 Ark. 151, 471 S.W. 2d 346 (1971); Barger v. State, 249 Ark. 878, 462 S.W. 2d 216 (1971); and Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267 (1966).

Here it clearly appears that the trial court was solicitous of appellant’s constitutional rights and thoroughly advised him of them. In view of his age, education and recent experience in court, represented by counsel, we are of the view that appellant knowingly and intelligently chose to waive his right to counsel.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.


author: Elsijane T. Roy, Justice.

text:
    Thomas Jeff WALLIS et al v. MRS. SMITH’S PIE COMPANY
    76-390
    550 S.W. 2d 453
    Opinion delivered May 16, 1977
    (In Banc)

      W. S. Walker and Gene C. Campbell, for appellants.

      Storey & McCord, by: William A. Storey, for appellee.
   Elsijane T. Roy, Justice.

On the morning of December 30, 1973, appellants Thomas Jeff Wallis and his mother, Mary Ethel Wallis, residents of Berryville, Arkansas, were returning to their home from a trip to Ohio. While traveling west on Interstate Highway #44 at a point within the city limits of Rolla, Missouri, they were involved in a motor vehicle accident with a large tractor-trailer truck driven by William Howard Long, agent of Mrs. Smith’s Pie Company, The ultimate destination of the truck was Oklahoma. Long is a resident of Pennsylvania, and Mrs. Smith’s Pie Company is a foreign corporation with its principal place of business in Pennsylvania and authorized to do business in' Arkansas under Ark. Stat. Ann. §§ 73-1754, et seq. (Repl. 1957), the Motor Carrier Act.

Wallis and his mother each brought an action against appellee Mrs. Smith’s Pie Company in Arkansas in Carroll Circuit Court for injuries they sustained as a result of the accident. The cases were consolidated for trial purposes only, and the jury returned individual verdicts in favor of appellee against each appellant. From said verdicts this appeal is brought.

At the trial Wallis, who was driving a 1967 Cadillac, testified they had been traveling about an hour when they ran into a heavy snowstorm. Because of the accumulation of ice and snow, the right lane of the interstate on which they were traveling had become hazardous and so he pulled into the left lane which he thought was in better condition.

Long had been following a furniture van in the right lane of the highway for about five miles. Immediately before the accident appellee’s vehicle driven by Long changed into the passing lane and struck the Cadillac from the rear. At the time of the accident the truck was traveling approximately 50 miles per hour while the Wallis vehicle was traveling at a speed of about 20 to 35 miles per hour.

The Missouri state trooper investigating the accident testified the roads were so slick his car slid past the accident. He further stated appellants complained of back injuries and were taken to a Rolla hospital for treatment although they showed no physical sign of injury. After being released from the hospital, appellants continued to Arkansas, arriving home around midnight of the day of the accident. For injuries allegedly suffered in the accident they received treatment from various physicians for several months. Thereafter Wallis sought damages in the amount of $250,000 while his mother sought $50,000.

The issue of the applicable state law was raised by appellee in its answer, contending that Missouri law controlled. Appellants urged Arkansas law was controlling. The court made no specific ruling on this issue prior to trial, but did apply Missouri law. Wallis admitted in his testimony he was aware of a Missouri statute which required automobiles to travel in the right-hand lane of a highway having two or more lanes of traffic proceeding in the same direction except under certain specified conditions not applicable here.

At the close of the evidence during the in-chambers discussion concerning the instructions to be given to the jury, appellants’ counsel objected to the application of Missouri law to the case. Thereafter, the following instructions were given:

Instruction No. 20. There was in force in the State of Missouri and City of Rolla at the time of the occurrence a statute which provided: “All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs or signals.” A violation of this statute is negligence.
Instruction No. 21. If you find that the plaintiff through his own negligence placed himself in a perilous position which was later discovered by the defendant or which by the exercise of ordinary care should have been discovered by the defendant in sufficient time to avoid the collision, then you must compare the negligence of each. If the negligence of plaintiff was of less degree than the negligence of defendant, then the plaintiff is entitled to recover damages you may find he has sustained as a result of the occurrence after you have reduced them in proportion to the degree of his own negligence.
Instruction No. 22. Mrs. Smith’s Pie Company has pleaded a defense of contributory negligence of Thomas Jeff Wallis. If you find that plaintiff, Thomas Jeff Wallis, operated his vehicle in a negligent manner and that such negligence was a proximate cause of his own damages then you will find for Mrs. Smith’s Pie Company on Tommy J. Wallis’s complaint.

The first point raised on appeal is that the trial court erred in instructing the jury on the law of Missouri absent proof of that law in the record. As a procedural matter we find no merit in this contention.

The issue of whether Missouri law was applicable was raised by the pleadings and was sufficient notice undej Arkansas statutes. This procedure comports with Ark. Stat. Ann. § 27-2504 (Supp. 1975), a part of the Uniform Interstate International Procedure Act, which reads:

A. Notice. A party who intends to raise an issue concerning the law of any jurisdiction of governmental unit thereof outside this State shall give written notice in his pleadings or other reasonable written notice.
B. Materials to be considered. In determining the law of any jurisdiction or governmental unit thereof outside this State, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence.
C. Court decision and review. The court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this State. Its determination is subject to review on appeal as a ruling on a question of law.

Under Ark. Stat. Ann. § 28-109 (Repl. 1962), Arkansas courts are required to take judicial notice of the statutory laws of other states, and we have held it is only necessary to plead foreign law, not prove it. See F.E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S.W. 320 (1904). In light of these statutes we find compliance with the necessary procedure for introducing foreign law.

The only other point for reversal urged by appellants is that it was error to apply the law of Missouri to the proceedings.

Appellants are residents of Arkansas while appellee is a Pennsylvania corporation authorized to do business in Arkansas. The accident occurred in the State of Missouri. This Court has previously been committed to the rule that in tort cases where damages are sought for personal injuries, the substantive law of the state where the accident occurred is controlling. See Bell Transportation Co. v. Morehead, 246 Ark. 170, 437 S.W. 2d 234 (1969), and McGinty v. Ballentine, 241 Ark. 533, 408 S.W. 2d 891 (1966).

In Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963), the rationale of this traditional approach was stated as follows:

* * * It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law [citations omitted]. * * *

The advantage of this rule lies in its certainty, ease of application and predictability of results.

However, application of this rule is a cause of concern to this Court because Missouri follows the doctrine of contributory negligence which is a complete defense to any action brought by a negligent plaintiff. See Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144 (1916), and Chandlery. Mattox, 544 S.W. 2d 85 (Mo. App. 1976). See also Powell Bros. Truck Line, Inc. v. Barnett, 194 Ark. 769, 109 S.W. 2d 673 (1937). Arkansas, on the other hand, follows the more modern rule of comparative fault which apportions liability between plaintiff and defendant and permits the injured plaintiff to recover as long as his fault is less than that of defendant.

The traditional rule of lex loci delicti has fallen under much criticism in recent times and quoting from Babcock, supra, we find the following comment:

. . . [T]he vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. “The vice of the vested rights theory, ” it has been aptly stated, “is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved [citations omitted]. More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. * * *

A number of jurisdictions are departing from a mechanical application of the traditional rule and applying a more flexible approach when faced with a situation which involves a choice of law between jurisdictions that have widely dissimilar laws. For example, in Woodward v. Stewart, 104 R.I. 290, 243 A. 2d 917 (1968), the court considered a negligence action which involved a Massachusetts accident with all parties being Rhode Island residents. After examining several cases, the court stated:

* * * The clear import of the line of cases adopting the rule of flexibility, however, is that a forum court is free to apply the substantive laws of a state, other than the locus, when it finds that such state has the significant interest in the outcome of those issues.

Restatement (Second) of Conflict of Laws § 146 (1971) is also in accord with this view:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence ... , in which event the local law of the other state will be applied.

In the case before us we note the action was brought in Arkansas by two Arkansas residents against a Pennsylvania corporation authorized to do business in this State. The only contact either party had with the State of Missouri was that each was traveling the interstate highway there en route to a destination in another state.

In Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968), a case similar to that before us, the Supreme Court of Mississippi discussed several factors in deciding to apply the comparative negligence law of that state rather than the Louisiana law of contributory negligence. Two Mississippi residents were killed as a result of a collision between their vehicles on a Louisiana highway. In its opinion the court discussed choice-influencing considerations as presented by Dr. Robert A. Leflar in several law reviews. These considerations are:

(1) Predictability of results.
(2) Maintenance of interstate and international order.
(3) Simplification of the judicial task.
(4) Advancement of the forum’s governmental interests.
(5) Application of the better rule of law.

The Mississippi court found the last two factors were important, stating:

A primary consideration in determining applicable law is the advancement of the forum’s governmental interests. Mississippi’s interests in the present controversy are evident, while Louisiana has none. The parties were residents of Mississippi, and no citizen of Louisiana is involved. If there is any recovery on a new trial, it will be by a Mississippi plaintiff-administratrix or a defendantadministratrix as counterclaimant, acting as officers of a Mississippi court for the benefit of Mississippi citizens. This state is especially concerned with the protection of its injured domiciliaries and their families, and the distribution of its domiciliaries’ estates. The law selected and applied in this case will determine the effect of the contributory fault, if any, of plaintiff’s and counterclaimant’s decedents. It will determine whether this negligence, if any, will preclude plaintiff or counterclaimant from recovery. It is this Court’s duty to further this State’s governmental interests. The comparative negligence statute of this State has been effectively administered for many years and we have an interest in applying it to Mississippi residents.
Finally, an important consideration is application of the better rule of law. We believe in our. own law in this instance. Comparative negligence, although utilized in diverse ways in only seven states, is a fairer and more economically equitable standard of liability than that of the common-law rule of contributory negligence.

In McGinty v. Ballentine, supra, this Court indicated in the appropriate case a change might be made in the Arkanaas rule, stating:

This “choice of law” rule urged by the appellant is sometimes also called the “forum preference” rule. * * *
We recognize that some courts, and a growing number of Law Review writers are going to the so-called “forum preference” rule. We cannot now say here whether this Court will, in a stronger case than the one presented, abandon the “lex loci delicti” rule in favor of the “forum preference” rule; but in the case at bar we adhere to the lex loci delicti rule, just as we held in Wheeler v. Southwestern Greyhound, supra [207 Ark. 601, 182 S.W. 2d 214]. Here, the deceased was not a resident of Arkansas; the administratrix was not appointed by any court in Arkansas; the traffic mishap did not occur in the State of Arkansas. The only contact that Arkansas had to the mishap was the fact that the defendant has a place of business in Arkansas. All of the other factors — residence of the deceased, place of mishap, the appointment of the administratrix — had their locale in Missouri. * * *

in Schwartz v. Consolidated Freightways Corp. of Del., 300 Minn. 487, 221 N.W. 2d 665 (1974), a three vehicle accident occurred in Indiana. Plaintiff, a resident of Minnesota, brought suit in that state against co-defendant corporations foreign to the State of Minnesota but both licensed to do business there. All three vehicles were passing through Indiana en route to destinations in surrounding states. At the time of the accident, Indiana had in force the common law doctrine of contributory negligence while Minnesota had enacted a comparative negligence Statute. In deciding to apply Minnesota law, the court stated:

. . . Here, plaintiff is a lifelong resident of Minnesota and sustained his injuries in the course of his employment as a truck driver for a Minnesota corporation. The vehicle which he was driving was owned by this Minnesota employer, and was licensed, registered, garaged, maintained, and insured in Minnesota. Plaintiff had a Minnesota driver’s license. The excursion which had brought plaintiff to Indiana originated in Minnesota and was to terminate in Minnesota [although the load plaintiff was hauling was to be delivered to Fargo, North Dakota]. Plaintiff has received and continues to receive medical care in Minnesota for the injuries sustained in the accident. He currently resides in Minnesota, saddled with crippling physical disabilities arising from the collision. Thus,, the economic impact of these injuries and of subsequent litigation will be felt by Minnesota residents. * * *

Arkansas first enacted a comparative negligence statute in 1955 (Acts of Arkansas, 1955, No. 191). This statute has been broadened so that liability is now determined by comparing the fault of the parties.

At the time of the accident involved here the Arkansas comparative fault statute, Acts of 1973, No. 303, §§ 1-3 (repealed by Acts of 1975, No. 367, § 4), read as follows:

SECTION 1. The word “fault” as used in this Act includes negligence, wilful and wanton conduct, supplying of a defective product in an unreasonably dangerous condition, or any other act or omission or conduct actionable in tort.
SECTION 2. Fault chargeable to a party claiming damages shall not bar recovery of damages for any injury, property damage or death where the fault of the person injured or killed is of less degree than the fault of any person, firm, or corporation causing such damages.
SECTION 3. In all actions for damages for personal injuries or wrongful death or injury to property, fault chargeable to a claiming party shall not prevent a recovery where any fault chargeable to the person so injured, damaged, or killed is of less degree than any fault of the person, firm, or corporation causing such damage; provided, that where such fault is chargeable to the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such fault.

This State’s governmental interest in its citizens is best served by application of our comparative-fault statute rather than Missouri’s contributory negligence law. As expressed in Clark v. Clark, 107 N.H. 351, 222 A. 2d 205 (1968), probably the truest governmental interest the forum has is “in the fair and efficient administration of justice, ” and in our opinion application of our statute better achieves that result.

The decided trend is away from the harsh results which occur in the application of the contributory negligence rule of law. Approximately 35 jurisdictions, including Pennsylvania, the home state of appellant corporation, have now enacted comparative negligence statutes in some form. See Heft & Heft, Comparative Negligence Manual, Ch. 3, §§ 3.10 through 3.580 (1971).

We therefore find this State has a predominate interest in applying its comparative fault statutes to its own citizens and those who seek relief in its courts. See Woodward v. Stewart, supra. For equally compelling reasons we find Missouri rules of the road are applicable to questions of alleged negligence in the actual driving of the vehicle. At the time of the accident, the parties were traveling the highways of Missouri and were under a duty to obey the traffic laws in force there. In Clark v. Clark, supra, the automobile accident occurred in Vermont and the parties were residents of New Hampshire. The court discussed the issue of whether to apply the Vermont guest statute, the “gross negligence” standard, or the New Hampshire negligence law as follows:

* * * We have an interest in applying it [common law negligence rule followed in New Hampshire] to New Hampshire residents, especially when such advance expectations as they may have had, based upon their domicile in New Hampshire, their maintenance of a car under our laws, and going on a short trip that was both to begin and end here, would have led them to anticipate application of our law to them. Unlike, “rules of the road,” as to which every consideration requires obedience to the rules that prevail at the place where the car is being driven, the factors that bear on this host-guest relationship all center in New Hampshire.

See also Vick v. Cochran, 316 So. 2d 242 (Miss. 1975).

In Sabell v. Pacific Intermountain Express Co., 36 Colo. App. 60, 536 P. 2d 1160 (1975), a Colorado resident brought an action for damages against two corporations, both of which were resident and authorized to do business in Colorado. The action arose out of a motor vehicle accident which occurred in Iowa. At the time of the accident Colorado had a comparative negligence statute while Iowa followed the doctrine of contributory negligence. In determining which state’s law would govern this issue the court stated:

* * * The relationship the parties have with a particular state has the greatest effect upon which of such rules of recovery should apply. In distinction, rules regulating conduct, as an exercise of the police power, are designed to protect the public in general from acts committed within the state which represent a danger to the public health, safety and welfare. Thus “rules of conduct” are more closely related to the state where the conduct occurs while “rules of recovery” relate more clearly to the state with which a party is identified. (Citation omitted.)

For the foregoing reasons this cause is reversed and remanded as to Thomas Jeff Wallis with directions to apply the Arkansas law as to the comparative fault statutes, but to apply the Missouri law as to the “rules of the road.” As previously mentioned, the causes of Mary Wallis and Thomas Jeff Wallis were independent actions with separate jury verdicts being returned as to each.

No abstract of any pertinent instructions which might reflect erroneous application of the law as to appellant Mary Wallis was contained in the briefs. Absent such we cannot assume error. Instruction No. 22 on contributory negligence which was abstracted applied only to actions of Thomas Jeff Wallis.

The burden is on appellant Mary Wallis to prove error as to her cause of action and having failed to meet this burden the judgment as to her is affirmed.

Reversed and remanded as to Thomas Jeff Wallis. Affirmed as to Mary Wallis.

Byrd, J., dissents.

       V.A.M.S., RS Mo. § 304.015(6) (Cum. Supp. 1973).

       Dr. Leflar is Distinguished Professor, University of Arkansas, noted scholar and recognized authority on the law of conflicts of law. See Leflar, American Conflicts Law (1968) and Leflar, Conflict of Laws: Arkansas — The Choice-Influencing Considerations, 28 Ark. L. Rev. 199 (1974); 54 Calif. L. Rev. 1584 (1966); 41 N.Y.U. L. Rev. 267 (1966).

       See Ark. Stat. Ann. §§ 27-1763 — 1765 (Suppl. 1975) for the present statutory sections.

       Pa. Acts 1976, No. 152, effective date September 7, 1976.

       A search of the transcript reveals that no instruction on contributory negligence was given as to Mary Wallis, nor any instruction on joint vendure or imputed negligence.


author: Darrell Hickman, Justice.

text:
    Gilbert ROTTINGHAUS, Marie ROTTINGHAUS, Anna B. HOLEMAN and Clarence PETERO v. Billy HOLDER, County Clerk and Vurnece JONES, Assessor
    76-297
    550 S.W. 2d 462
    Opinion delivered May 16, 1977
    (Division II)

      Schorr & Bachman, P.A., by: Kenneth L. Schorr, for appellants.

      Ponder & Lingo, for appellees.
   Darrell Hickman, Justice.

This appeal from Lawrence County Circuit Court involves similar facts and issues to those in a case we have decided this date.

The appellants filed an affidavit with the county clerk of Lawrence County claiming that three Lawrence County banks had not assessed their property. The affidavit set forth the assets of the three banks and a claim was made for ten percent of the total amount of the assets of all three banks. Thereafter, the appellants made demand on the assessor and county clerk to meet with them in accordance with Ark. Stat. Ann. § 84-444 (Repl. 1960) to determine the value of the bank property that was reported in the affidavit and to fix a fee according to the statute which would be paid to the appellants.

Apparently the county clerk and assessor would not meet with the appellants and a lawsuit was filed in circuit court of Lawrence County for a writ of mandamus to compel Billy Holder, the county clerk, and Vurnece Jones, the assessor, to meet and act according to the Arkansas statute. The appellee county officials responded that the affidavit did not sufficiently describe the property to warrant a meeting, the meeting would be futile and mandamus was not the proper remedy. The case was submitted to the circuit court on stipulation. It was stipulated that the property of the banks that the appellants claimed was not assessed was a list of “resources” taken from the annual statements of the banks, which are published annually in a newspaper. The list of assets includes cash, loans, stocks, bonds, and other assets of various categories. The court made a finding that Ark. Stat. Ann. § 84-443 (Repl. 1960) requires a complete and accurate description of the property, and the annual printed statement of banks is not sufficient to comply with the law; that a meeting between the parties would be futile; that mandamus could not be used to require an act of discretion or judgment. The court dismissed the complaint.

The purpose of Ark. Stat. Ann. § 84-444 is to permit an individual taxpayer to report personal property that has not been assessed and collect an award. The statute presumes that there will be no disagreement between the taxpayer and the county officials that the reported property has not been assessed, because there is no provision in the statute to resolve such a disagreement. The meeting between the taxpayer, the county clerk and assessor is to determine a value of the property and to fix a fee for the taxpayer.

In this case the county officials argue that the banks in question have been properly assessed and taxed, but there is no evidence in the record regarding assessment and taxation of the banks’ property. Furthermore, there is nothing in the record to show the “resources” listed on the affidavit have or have not been assessed to the bank in question. Obviously, not all of the items listed as “resources” or “assets” in the affidavit are subject to taxation. Therefore, it comes down to whether or not it is up to the taxpayer or the county officials to determine, on their own, the validity of the claim.

If there is a dispute as to whether or not property should be assessed and taxed, the statute does not provide a means or method to resolve that dispute. Furthermore, there is no mention in the statute of the owner of the property. Ordinarily an owner of property has some recourse when his property is assessed or taxed and would have a right to challenge any assessment. The statute apparently presumes that there will be no objection by the owner. There is a serious question regarding the constitutionality of the statute as it applies to the owner of property because there is no provision for notice to the owner. Although the appellees raised the constitutional issue, it was not ruled on by the trial court, nor were the owners of the property parties to this lawsuit. Therefore, we will not rule on the constitutionality of this statute.

We agree with the trial court that the bare financial statement of a bank, which obviously includes property not subject to taxation, is an insufficient description of property upon which a demand can be made for a meeting pursuant to the statute. Therefore, the trial court was correct in holding that a meeting would have been futile.

We believe that the statute in question was primarily drafted as a means of providing for a reward to the individual taxpayer who reports property that has, for any reason, been left off the tax books. The statute necessarily assumes there will be no disagreement between the parties as to the legality of the assessment. In this case we have a disagreement before the meeting is even held. In such an instance mandamus is not an appropriate remedy. See our decision in Bunting v. Ted-ford, supra.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.

         Bunting et al v. Tedford et al, 261 Ark. 638, 550 S.W, 2d 459 (1977).

       The statute was amended by Act 202, 1977 General Assembly.


author: Donis B. Hamilton, Special Justice.

text:
    Ailene BUNTING, Ruth WILLIS, L. B. FOSTER, Harriet De LANO, A. B. MOREHEAD and Andrew BEARDEN v. L. E. TEDFORD and Charles JACKSON
    76-179
    550 S.W. 2d 439
    Opinion delivered May 16, 1977
    (In Banc)

      Kenneth L. Schorr, for appellants.

      Lee A. Munson, Pros. Atty., 6th Judicial Circuit, by: John Wesley Hall, Jr., Dep. Pros. Atty., for appellees.
   Donis B. Hamilton, Special Justice.

This case involves an appeal from a decision of the Pulaski Circuit Court refusing to grant a writ of mandamus against appellees. The writ, if granted, would have required appellees to meet as a board pursuant to Ark. Stats. Ann. Section 84-444 (1960 Repl.) to fix a value on property reported by appellants as being non-assessed personal property. Appellants claimed a 10% statutory bounty for discovering the property.

The material facts are not in dispute. Appellants filed a sworn statement with the county clerk in which they alleged that sixteen banks and savings and loan institutions in Pulaski County had failed to assess $1,872,726,208 of personal property. Appellants used as a basis for their allegations of unassessed property newspaper and other published “statements of condition” of the institutions from which they deducted only the figures listed therein for real estate and tangible personal property. Included in the assets on the statements of condition were items for U.S. governmeR/t and U.S. government agency obligations as well as obligations of state and political subdivisions.

After the report was filed, the attorney for appellants wrote a letter to appellees containing the following language:

We will appear for the meeting required by Section 444 at 2:00 o’clock in the afternoon on Tuesday, April 6, in the office of the Pulaski County Assessor at the Pulaski County Courthouse to complete the formality of agreeing upon the above figures, (emphasis added)

The figures mentioned in the letter were the same figures (including the items listed for federal, state and local government obligations) as contained in the report of unlisted property filed by appellants.

The parties met on April 6, 1976, in accordance with the letter. The appellants submitted a “special list of omitted property” containing the figures previously submitted by them, which they demanded appellees sign. On advice of counsel appellees refused to sign the form or to set a value on the property without additional proof and documentation, which was never tendered.

Appellants then petitioned Pulaski Circuit Court for a writ of mandamus to compel appellees to “meet in good faith” with appellants for the purpose of establishing the values on the property alleged by appellants to be unassessed. The Circuit Court denied the petition, holding that a meeting had, in fact, been held between the parties, that there was a substantial question as to whether all the property alleged by appellants to be unassessed was subject to tax and further that mandamus was improper to compel officials to act in the discretionary area involved in the case. From that decision comes this appeal.

Mandamus is not a writ of right, but is directed to the sound discretion of the trial court and the parties applying for it must show a specific legal right and the absence of any other specific legal remedy. Goings v. Mills, 1 Ark. 11 (1837); Fitch v. McDiarmid, 26 Ark. 482 (1871); State v. Board of Directors of School District of Ashdown, 122 Ark. 337, 183 S.W. 747 (1916); Arkansas State Highway Employees Local 1315 v. Smith, 257 Ark. 174, 515 S.W. 2d 208 (1974). The right asserted must be a clear, legal right. Mandamus may not be used to determine in advance what the rights or actions shall be. Arkansas State Highway Commission v. Otis and Company, 182 Ark. 242, 31 S.W. 2d 427 (1930). This court will reverse the trial court’s refusal to grant the writ only upon a finding that the trial court abused its discretion in doing so.

In Arkansas State Highway Employees Local 1315 v. Smith, supra, we said:

. . . Before we can reverse the trial court in its refusal to grant a petition for mandamus, we must find that the duties, the performance of which are sought to be mandated, are clear and legal duties specifically and peremptorially enjoined by law, and that the trial court abused its discretion in denying the petition for the writ.

The pertinent sections of the statute (Ark. Stat. Ann. 84-444 [1960 Repl.]) under which appellants requested the meeting provide as follows:

... In any case where the assessor for any cause shall have failed to list any taxable property on the assessment rolls as by law required, and such property shall be discovered and reported under oath to the county clerk by someone other than the assessor or his deputy, a member of the equalization board, county clerk or other county official, if it be after the assessment rolls have been delivered to the county clerk, and before the collector closes his books, the party making such discovery and report, on filing claim therefor, shall be allowed an amount equal to 10% of the total tax and penalty to be extended against the property so reported; . . . provided further, the party reporting such property, together with the county assessor and the county clerk, shall constitute a board for the purpose only of fixing a value on such property reported as herein provided and for such a fee is claimed. . .

On the basis of the record before us, we cannot say that the trial court’s refusal to grant the writ was an abuse of discretion.

The petition for mandamus on its face shows (and appellants in oral argument stated) that obligations of the United States government were included in the assets claimed to be omitted from assessment. Such obligations are not subject to local taxation. McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 979 (1819); Weston v. Charleston, 2 Pet. 449, 7 L. Ed. 481 (1929); Plummer v. Coler, 178 U.S. 115, 20 S. Ct. 829, 44 L. Ed. 998 (1900); Colorado National Bank v. Bedford, 310 U.S. 41, 60 S. Ct. 800, 84 L. Ed. 1067 (1940); Macallen Company v. Massachusetts, 279 U.S. 620, 49 S. Ct. 432, 73 L. Ed. 874 (1929).

Appellants asked the trial court that appellees be ordered to meet “in good faith” for the purpose of fixing the value on the property alleged to be unassessed. The trial court found that a meeting had, in fact, taken place and this is admitted by appellants. The trial court refused to find that appellees acted in bad faith in not accepting appellants’ figures. The proof indicates that appellants insisted on appellees’ agreeing to their figures which appellees rightfully refused to do since they included items on which no tax could be lawfully assessed. Since the parties had met but could not agree on a value, the trial court could do no more in the absence of a prior determination by declaratory judgment or otherwise what action was to be taken. Arkansas State Highway Commission v. Otis and Company, supra.

Appellants have cited the cases of Kirkwood v. Carter, 252 Ark. 1124, 482 S.W. 2d 608 (1972); and Swiderski v. Goggins, 257 Ark. 228, 515 S.W. 2d 644 (1974), for the proposition that mandamus would be the appropriate remedy under the circumstances above outlined. These cases are distinguishable from the one at bar. In Kirkwood, the taxpayers’ petition was brought against the county judge and election commissioners to compel them to purchase or lease-purchase voting machines to be used in Faulkner County as required by Act 465 of 1969. Apparently, the board of election commissioners had failed to purchase the machine under the belief that insufficient funds existed for that purpose. The court there found that the funds did, in fact, exist and that the commissioners should purchase the machines under the formula set forth in the act. In Swiderski, the county clerk brought mandamus action against the board of election commissioners to furnish him with absentee ballots pursuant to statute. The court ordered the board to obtain and supply to the county clerk a sufficient number of ballots for absentee voters in accordance with the formula in Ark. Stat. Ann. Section 3-610 (1976 Repl.). In both of the above cases, the right to specified action on the part of the defendants was clear; the only question to be resolved was that of amount, for which a formula was provided in the statute. Here, there is a question as to whether all of the property reported by appellants is taxable and the value thereof. Section 81-444 of the statute provides no guideline or formula by which agreement on such matters could be independently measured. The setting of value calls for independent judgment and discretion which could not be determined in advance by the Circuit Court on a petition for mandamus.

We have considered, but appellants do not rely upon, the case of Lewis v. Conlee, Mayor, et al, 258 Ark. 715, 529 S.W. 2d 132 (1975). In that case, the city council called a referendum election in response to a citizens’ petition with respect to an ordinance, but the council set the date for the election 21 months in the future. This court reversed the trial court’s refusal to grant mandamus holding that the unwarranted postponement of the election for 21 months was an abuse of discretion, and in effect, a denial of the citizens’ right to have any meaningful election. The facts in Lewis distinguish it from the case at bar. Here, there was no undue delay in arranging for the meeting between appellants and appellees, and it was conceded that the meeting had been held without issue as to the time of the meeting. Appellants contend that mandamus lies to compel the assessor and the clerk to accept their contentions as to the values of the property alleged to be omitted from the assessment records. Under the record here, where portions of the claimed assessments were not subject to taxation as a matter of law, appellees did not abuse their discretion in refusing to accept appellants’ claim.

There have been many issues raised by both parties dealing with the constitutionality of the tax statutes which we find to be unnecessary to reach in view of our decision here.

The lower court judgment is affirmed, and appellants shall bear the costs in this court.

Special Justice William R. Wilson joins in this opinion.

Fogleman and Roy, JJ., not participating.

       We note that Amendment 57 and Acts 106, 202 and 203 of 1977 enacted pursuant to it, apparently have rendered moot most future constitutional arguments made here except those relating to the due process clauses of the State and Federal Constitutions.


author: George Rose Smith, Justice.

text:
    MILLER-ELSTON MORTUARY, Inc. and MAGNOLIA LODGE NO. 60, Free and Accepted Masons of Arkansas v. Dr. Nicholas PAAL, Sam ENGLISH, Marilyn GLASGOW, Bill NORRIS and James CHUDLEIGH
    76-373
    550 S.W. 2d 771
    Opinion delivered May 23, 1977

      Pope, Pratt, Skamburger, Buffalo & Ross, by: Robert D. Ross, for appellant Miller-Elston Mortuary, Inc.

      Philip W. Ragsdale, for appellant Magnolia Lodge No. 60, Free and Accepted Masons of Arkansas.

      Solloway & Cronkhite, by: Lanny K. Solloway, for appellees.
   George Rose Smith, Justice.

The appellant, a corporation owned by Joseph Elston, owns and operates a funeral home in Little Rock. Elston testified that the inadequacy of his facilities led to a decline in his volume of business. He decided to acquire a larger building and, being black himself, sought such a building in a predominantly black neighborhood. This resulted in his entering into a contract to purchase the vacant Magnolia Lodge Building at the corner of Sixteenth and Battery Streets. The contract was conditioned upon Elston’s being successful in having the property rezoned and in obtaining a building permit for the necessary remodeling of the building.

The city directors approved the rezoning of the property from a residential classification to a Lodging, Nursing Home, and Undertaking classification. This suit, however, was brought by four owners or lessees of residential property in the neighborhood, asserting that the funeral home would constitute a nuisance in the surrounding residential district and should be enjoined. Another protestant intervened in the case. After an extended hearing the chancellor entered a decree permanently enjoining the appellant from operating the proposed funeral home.

The applicable principles of law are settled by our cases. A funeral home is not a nuisance per se. It may be a nuisance, however, in a residential district as a result of its continuous reminder of death and dead bodies, which may destroy the comfort and repose sought by homeowners and lead to a decline in property values. Mitchell Funeral Home v. Bearden, 255 Ark. 888, 503 S.W. 2d 904 (1974); Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906 (1954).

In the present case there was comparatively light opposition to Elston’s proposal. Even though the district is entirely residential for at least two blocks in every direction from the site of the Lodge Building, a number of witnesses testified in Elston’s favor. In fact, the chancellor’s decree is somewhat unusual in that upon almost every point he found that the protestants had not proved their assertions by a preponderance of the evidence. Specifically, the chancellor found that no serious traffic problems would be created, that it had not been shown that the neighborhood would gradually become commercial if the Lodge Building were converted to a funeral home, that it had not been shown that there would be a genuine detrimental effect upon property values, and that the witnesses who testified about the presence of the funeral home as a reminder of death were comparatively young. Actually, only two witnesses touched upon that issue, and the one who would be very near the funeral home purchased his property after the rezoning and with knowledge of it. Our review of the record convinces us that the chancellor’s evaluation of the conflicting proof was an accurate summation.

Despite his misgivings, the chancellor concluded that “the testimony of the witness, Hill, . . . convinces the Court the injunction must be and it is made permanent.” We must, therefore, examine Hill’s testimony in some detail.

Hill is (or was at the time of the trial) the City Director of Human Resources. In that capacity he is responsible for planning and implementing programs to upgrade several neighborhoods that have deteriorated. To that end he participates in allocating and administering federal funds in an effort to save and revitalize residential areas. During a period of seven years about $20,000,000 was so spent in neighborhoods throughout the city.

Although the neighborhood now in question is predominantly black, Hill testified that young professional whites were beginning to move back into it. Hill personally believed that a racial mixture is good for any neighborhood and that anything causing a reversal of that process would be detrimental to the neighborhood. He pointed out that most of the protestants were white and expressed the opinion that if a black funeral home were established in the neighborhood it might cause the moving in of whites at least to slow up and their moving out to start up again.

It is unnecessary for us to weigh the merits or demerits of Hill’s position, for even if his point of view were found to be wholly correct it is still not a controlling consideration in a judicial proceeding such as this suit. Hill’s testimony might more appropriately’ have been presented to the city authorities when the application for rezoning was submitted for their consideration. In the courts the issue is whether the proposed funeral home will have such an effect upon the surrounding residential property as to constitute a nuisance. The long-range and intangible sociological consequences of the establishment of the funeral home are not, in our opinion, matters that can be given weight in a case of this kind. Consequently we cannot agree with the chancellor’s conclusion that Hill’s testimony has the effect of overcoming the deficiencies that otherwise exist in the protestants’ proof.

The Magnolia Lodge, as the seller of the property, intervened in the case and sought specific performance of its contract. To this point its prayer for relief has been premature, because the completion of the sale has been contingent upon the appellant’s successful defense of this case. That issue having now been settled, the cause will be remanded for further proceedings.

Reversed.

We agree. Harris, C.J., and Holt and Roy, JJ.


text:
    Gary P. NEWBERRY v. STATE of Arkansas
    CR 77-23
    551 S.W. 2d 199
    Opinion delivered May 23, 1977
    (In Banc)'
    [Rehearing denied June 27, 1977.]

      Lohnes T. Tiner, for appellant.

      Bill Clinton, Atty. Gen., by: Terry'R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Charged with possession of marihuana, Newberry was first convicted in municipal court and sentenced to six months in jail and a $500 fine. The municipal judge suspended five months and nine days of the jail sentence and half of the fine. Newberry appealed to the circuit court, where he was again convicted and sentenced to six months in jail and a $250 fine, without any suspension. He asserts three points for reversal.

First, the State’s testimony is amply sufficient to support the verdict. An officer testified that he saw Newberry take something from the trunk of a car, unlock the car, and get in, with two girls. When the officer approached the car he saw next to Newberry a package that proved to be marihuana. Newberry, upon being placed under arrest, spontaneously said, “Oh, hey man, that’s my marihuana; keep the girls out of it. ” Despite the contradicting testimony for the defense, the jury had a sufficient basis for its verdict.

Second, at the beginning of the circuit court trial the defense asked that it be permitted to withdraw the appeal and let the municipal court judgment be affirmed. The circuit judge denied the request, explaining that a pretrial date had been set and that counsel had been notified that all pretrial motions should be lodged on that date. At the pretrial conference the defense entered a plea of not guilty and announced that the cause was ready for trial.

The court did not abuse its discretion in denying the motion to dismiss the appeal. When an appeal takes a case to a purely appellate court, for a review of the judgment of a trial court, the appellant has a right to dismiss the appeal and submit to the judgment, if there is no prejudice to the appellee. Bush v. Barksdale, 122 Ark. 262, 183 S.W. 171, L.R.A. 1917A, 111 (1916). But when the appeal is to an intermediate court for a trial de novo, the prosecution is as much a party to the transaction as it was in the court below. The intermediate court, and not the accused, is then vested with the power of dismissal. State v. Collins, 195 Kan. 695 (1966); Dressman v. Commonwealth, 204 Ky. 668, 265 S.W. 2 (1924); Seay v. Commonwealth, 155 Va. 1087, 156 S.E. 574 (1931). The court might, for example, find the original sentence to be inappropriate or think a trial to be a necessary step toward discouraging dilatory appeals. In the case at bar we perceive no basis for saying that the circuit judge abused his discretion in the matter.

Third, as the witnesses were being sworn the court asked defense counsel if he wished to have his client sworn at that particular time. Counsel, without responding directly, said that he had a motion to make. Later on, outside the presence of the jury, counsel moved for a mistrial, on the ground that the court’s inquiry unduly emphasized the accused’s right to testify or not to testify.

The court was right in refusing to grant a mistrial. Counsel relies upon Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975), but the cases are significantly different. There the trial judge, in reply to counsel’s statement that the accused had a right to be sworn at a later time, remarked: “Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.” That positive assertion erroneously brought to the jury’s attention the defendant’s right to testify or to remain silent. Here, by contrast, the court’s routine inquiry was not an affirmative assertion of fact. Even if we shodld take the view that the inquiry should not have been made, the error was certainly harmless.

Affirmed.