author: Ed. F. McFaddin, Associate Justice. Sam Bobinson, Associate Justice, Jim Johnson, Associate Justice,

text:
    Lauderdale v. State.
    4985
    343 S. W. 2d 422
    Opinion delivered February 13, 1961.
    [Rehearing denied March 20, 1961]

      Howard & McDaniel, for appellant.

      Bruce Bennett, Attorney General; by Bill J. Davis, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant was charged with injuring property with dynamite — a violation of § 41-4237, Ark. Stats. The information stated: “The said E. A. Lauderdale, Sr., on or about the 7th day of September A. D. 1959, did unlawfully and feloniously, and willfully damage and injure a building located at 800 Louisiana Street in the City of Little Rock, by means of dynamite, against the peace and dignity of the State of Arkansas.” Although appellant was charged with damaging the school building at Eighth and Louisiana, it was not claimed that he personally set off the dynamite: rather, the claim was, that he was an.accessory before the fact with his accomplice, J. D. Sims, who, personally and in keeping with the directions of Lauderdale, set off the charge of dynamite. An accessory before the fact may be tried and convicted as a principal. Section 41-118, Ark. Stats.; Wilkerson v. State, 209 Ark. 138, 189 S. W. 2d 800. J. D. Sims confessed to the crime and received sentence and then testified for the State in the trial against Lauderdale.

The trial resulted in a jury verdict of guilty; and from a judgment on the verdict there is this appeal. The transcript contains more than a thousand typewritten pages; the' combined abstracts and briefs in this Court contain 537 printed pages; and the motion for new trial contains 55 assignments. We discuss some of these:

I. Change Of Venue. Appellant claimed that because of other dynamitings, because of widespread newspaper, television, and radio publicity, and because the Little Rock Chamber of Commerce offered a reward for the conviction of the dynamiters, it was impossible for him to obtain a fair trial in Pulaski County. The motion for change of venue stated in part: “Within a matter of less than a week after the commission- of the said crimes, public opinion in Pulaski County became firmly fixed against your petitioner, and the minds of the inhabitants of Pulaski County are now so prejudiced against petitioner that a fair and impartial trial cannot be had in Pulaski County, Arkansas, in this matter.”

Both appellant and the State called witnesses in regard to the change of venue; a total of twenty-three testified; and at the conclusion of the hearing the Circuit Court denied the motion. We cannot say that the Trial Court abused its discretion. In Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95, there was discussed this matter of the change of venue of two other parties involved in other dynamitings that' occurred the same night. In that case, the Trial Court also denied the motion for change of venue and we sustained the ruling: what we said in that opinion on the change of venue matter applies with equal force to the case at bar.

II. Refusal To Allow Interrogation Of Veniremen On Certain Matters. A large number of veniremen were examined before the jury was finally completed. In the course of the voir dire examination the defendant’s attorney asked many questions, some relating to membership in the Country Club of Little Eock, the Capitol Citizens’ Council, the Little Eock Chamber of Commerce, and also membership in churches and other organizations. The defendant undertook to ask the venireman, “Are you a segregationist or an integrationist?” The Court refused to allow any venireman to be asked such question ; and the correctness of that ruling is the point here at issue.' The appellant says that he had a right to ask the veniremen, “as to whether they believed in integration, the mixing of the races, or segregation”; and appellant cites Bethell v. State, 162 Ark. 76, 257 S. W. 740, 31 A.L.R. 402, wherein we held it was proper on voir dire to ask veniremen if they belonged to the Ku Klux Klan. When relevant and of significance to the case being tried, inquiry should be allowed to be made on voir dire as to membership in an organization. The examination of the prospective juror is for the purpose of obtaining a fair and impartial jury, each member of which has a mind free and clear of all interest, bias, or prejudice that might prevent the finding of a true and just verdict. In 31 Am. Jur. 121 “Jury” § 139, the rationale of the holdings is summarized in this language:

“A wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the Court, but the adverse litigant should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror that may affect his final decision. Thus reasonable latitude should be given parties in the examination of jurors to gain knowledge of their mental attitude toward the' issues to be tried. . . .”

The same authority then continues:

“However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity and competency of the juror . . . and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant.”

To ask a venireman on voir dire whether he was a segregationist or an integrationist would have no bearing on his fairness as a juror to sit in the trial of a case being tried for dynamiting a building. This is particularly true in this case since the words, “integrationist” and “segregationist” are now relative terms, and convey meanings of a scope and degree of intensity of feelings as to be more confusing than helpful in determining the fitness of a juror. To compel the veniremen to answer questions on these points would have been to inject an issue not pertinent to testing the capacity and competency of the jurors and would have tended to create a bias or prejudice that would also have embarrassed the veniremen. The Judge of the Trial Court is vested with wide discretion in determining the extent to which inquiry may be made of veniremen; and, by seeing the trial, can determine first hand — far better than we can on appeal — whether the questions asked are in good faith or are for the purpose of creating bias and prejudice. We cannot say that the Trial Judge abused his discretion in the case at bar.

III. The Juror Smith. The appellant claims that the Trial Court committed error with respect to this juror (a) in preventing appellant from further interrogation of the juror on voir dire, and (b) in refusing to excuse the juror because of the answers he made on voir dire. However, we find no error committed by the Court in either of these matters. Several pages in the transcript contain the voir dire examination of the juror and the Court’s rulings. It was not shown that Mr. Smith had discussed the case with any witness; but he did state that he had an opinion in the case. The Court then asked him the following:

‘ ‘ Q. You can and will set this pre-conceived opinion aside and go in the jury box with an open mind and try this case solely on the law and the evidence developed here and give both sides a fair and impartial trial?

A. That’s correct.”

In response to inquiries by appellant, the juror stated that he would have to hear evidence to feel that his original opinion was erroneous; and again the Court asked the juror:

“Q. You could set that opinion aside and try this case solely on the law and the evidence developed here?

A. Yes, your Honor.”

The appellant desired to further interrogate the juror as to whether it would take evidence to remove his opinion, but the Court then ruled that the inquiry had been pursued far enough, and that the juror would not be excused for cause. The appellant had exhausted his peremptory challenges at this point.

The situation presented to the Trial Court was similar to the situation in many of our reported cases. In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887, this Court said:

“While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking. ’ ’ In. Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244, Chief Justice Waite used this language, which is apropos:

“The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, .we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care •should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.”

In Niven v. State, 190 Ark. 514, 80 S. W. 2d 644, Mr. Justice-McHaney said: .

“Our rule is that a juror is not disqualified in a criminal case where he has a ‘fixed’ opinion which is based upon hearsay testimony, newspaper reports, or mere rumor, even though it would take evidence to remove such opinion, where, he states on his voir dire that he can and will, if selected, go into the jury box and disregard such opinion, and that he has no bias or prejudice for or against the accused. Jackson v. State, 103 Ark. 21, 145 S. W. 559; Corley v. State, 162 Ark. 178, 257 S. W. 750; Tisdale v. State, 120 Ark. 470, 179 S. W. 650; Scruggs v. State, 131 Ark. 320, 198 S. W. 694; Crawford v. State, 132 Ark. 518, 201 S. W. 784; Mallory v. State, 141 Ark. 496, 217 S. W. 482; Sneed v. State, 143 Ark. 178, 219 S. W. 1019; Borland v. State, 158 Ark. 37, 249 S. W. 591; Maroney v. State, 177 Ark. 355, 6 S. W. 2d 299. The above cases also hold that the qualifications of a juror rest very largely in the sound discretion of the trial court.”

The trial court did not abuse its discretion in the rulings regarding the juror Smith.

IY. Admission Of Other Dynamitings. Appellant was tried for participation in the dynamiting of the Little Rock School Board Office. J. D. Sims had confessed to participating in this dynamiting and he testified for the State; also Jesse Raymond Perry had been tried and convicted for participating in this dynamiting, and he testified against appellant. Furthermore, it was shown that the dynamiting of the Little Rock School Board Office was a part of a scheme planned by appellant Lauderdale with Sims, Perry, Coggins and Samuel Graydon Beavers, to dynamite several places the same night the School Board building was dynamited. Appellant claims that error was committed in allowing the testimony as to other dynamiting the same night. He relies very strongly on our holding in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, in which this language appears:

“Thus our cases very plainly support the commonsense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded.”

See also Rhea v. State, 226 Ark. 664, 291 S. W. 2d 521.

We hold that the testimony as to the other dynamitings plannéd for the same night was clearly admissible to show the scheme, pattern, and intent of Lauderdale in the dynamiting in the case of the Little Rock School Board Office for which he was tried. In the appeal of Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95 we ruled on this question, involving the same dynamiting- incident as herein involved, and we quoted from Underhill On Criminal Evidence, 5th Ed., § 207, as follows:

“ ‘If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.’ ”

Y. Sufficiency Of The Corroboration.

Section 43-2116, Ark. Stats, reads in part:

“A conviction cannot be had in any case of felony 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 ...”

The appellant insists that there was not sufficient evidence to take the case to the jury — says appellant — because the testimony of the accomplices was not sufficiently corroborated by other evidence tending to connect Lauderdale with the commission of the offense. The evidence of the accomplices in this case is sufficient to support the jury verdict if there be other testimony independent of the testimony of the accomplices that tends to connect defendant with the commission of the crime. We therefore have examined the record for such “other testimony”; and here is some of it:

(1) It was testified by the witness Rucker that about 6:30 P. M. on the night of Monday, Sepbember 7, 1959 (the night of the dynamiting) he was burning trash and heard a ear door slam a short distance away; that he investigated and found the appellant Lauderdale, who said he had been getting leaf mold; and that after a brief conversation about their families, Lauderdale drove away. The witness Rucker testified that Lauderdale was alone and sitting in the car, and that it was parked in a clean place where there was no leaf mold. Three days after the bombing, officers went with Rucker to the place where he had seen Lauderdale; and a cache of dynamite was found 150 feet from where Lauderdale’s car had been parked. It was shown by other witnesses that this cache consisted of 65 sticks of dynamite, and a coil fuse over 19 feet long — all in a sack under a pile of rusted metal.

(2) It was testified by Sammy Beavers, son of Samuel Graydon Beavers, that appellant Lauderdale visited at the home of Samuel Graydon Beavers and had a 15-minute conversation with Samuel Graydon Beavers (one of the accomplices) outside of the hearing of any person, on Friday night before the Labor Day bombings on the following Monday. Lauderdale came at six o ’clock in the evening and professed to be in a hurry, but he took Samuel Graydon Beavers (the accomplice) out on the front porch and they talked from 15 to 30 minutes, with no one hearing the conversation.

(3) The accomplice Beavers testified that he obtained dynamite and fuse from Lauderdale to use in bombing another place in Little Rock, but the witness changed his mind and decided it was too dangerous; so he took the dynamite and fuse home and buried them. He took the officers to the place where he had buried the items; and the officers testified that the dynamite and fuse that Beavers had were similar to some of the dynamite and fuse that had been uncovered in the cache previously mentioned.

(4) The witness Crawley testified that she was the owner and operator of the King Tut Cafe on Asher Avenue, and that about 7:30 P. M. on Labor Day, September 7, 1959, Sims drove up to her cafe with another man seated on the front seat with him and with Lauder-dale on the back seat. She waited on the three men and brought them three cups, of coffee and one package of cigarettes. This testimony put Lauderdale with Sims three hours before the dynamiting.

(5) It was testified by two FBI agents that the fingerprint of appellant was found on the car of Perry, the accomplice. This testimony put Lauderdale and Perry together in a car som'e time before the bombing.

(6) Perry and Sims claimed that they met Lauder-dale at 13th and Pine Streets one evening to make the plans for the bombing. The law enforcement officers testified that Lauderdale admitted to them that he was at 13th and Pine on the same evening that Perry and Sims claimed to have met him there.

The testimony of some of these witnesses was disputed, but the weighing of the testimony was for the jury; and our problem is, whether these six numbered items constitute “other evidence tending to connect the defendant with the commission of the offense,” independent of the testimony of, the accomplices. One of these items if standing aloné would not be sufficient; two of them might not be sufficient; but when all six of these items are put togethér, we hold that they are sufficient “other evidence tending to connect the defendant with the commission of the offense”; independent of the testimony of the accomplices. Together they make a chain of circumstances that carry the case to the jury. One thread,- in itself, is very weak, but many threads woven together will make a rope; and these threads of independent evidence, woven together, are sufficient to take the case to the jury.

Y I. The Juror Illing. The trial of this case commenced in Circuit Court on November 23, 1959, and the jury verdict was returned late in the night of November 27, 1959. On the afternoon of November 27th, just as the defense was presenting its last witness before resting the case, the following occurred at the instance of the defendant in the absence of the jury:

“Mr. Howard: If Your Honor, please, since the jury was selected and sworn, there has come to the attention of counsel for the defendant'that one of the jurors, Mr. Horace Illing, is related by affinity to Fire Chief Nalley, whose automobile was the subject of testimony in this law suit, and it being our information, and it' is purely information, that Fire Chief Nalley married the sister of Horace Illing, and we ask the Court to declare a mistrial at this- time.

‘ ‘ The Court: That is what I understand. I learned that yesterday. Overruled.

: “The defendant objected to the above ruling of the court and at the time asked that his exceptions be noted of record, which was accordingly, done.”

Appellant claims that the Court’s ruling was erroneous and that the Court should have declared a- mistrial because of Juror Illing’s relationship to the wife of Fire Chief Nalley. We do not agree with the appellant’s claim; and there are several reasons for our conclusion.

In the first place, there was no statutory reason for excusing the juror Illing. Section 43-1920, Ark. Stats., in listing the grounds for challenging a juror for implied bias, says in part:

‘ ‘ First. Where the juror is related by consanguinity, or affinity, or stands in the relation of guardian and. ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a. member of the family of defendant or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted.”

Illing could not have been disqualified under this section because Lauderdale was being tried only for dynamiting the school office and not for dynamiting the automobile which the Little Rock Fire Department owned and had assigned to Fire Chief Nalley, who did not own the car and could have suffered no property damage in connection with the dynamiting of the car. Furthermore, Nalley was not even a witness in the trial of this case. The Trial Court possesses considerable discretion as to excusing jurors in a situation such as is here presented, and we cannot say that such discretion was abused.

Another reason for our conclusion to sustain the ruling of the Trial Court in regard to Juror Illing is because of the opportunity the appellant had on voir dire examination to interrogate Juror Illing. The voir dire examination of Illing consumed eight pages of the typewritten transcript (T. 408-415, inclusive). The juror was interrogated by the defendant at length, and that was the time and place for the defendant to ask him about any possible relationship to anyone in any wise the object of any bombing. Due diligence required investigation by the defendant on voir dire as to veniremen; and defendant could not wait until near the conclusion of the trial, then ask the Court for a mistrial, and complain that the Court abused its discretion. No “overruling necessity” was shown in this case, nor any absolute statutory disqualification or bias.

Conclusion. As aforesaid, the motion for a new trial contained fifty-five assignments. We have studied each one of them and find no reversible error.

Affirmed.

George Bose Smith, • Bobinson and Johnson, JJ., dissent.

Sam Bobinson, Associate Justice,

dissenting. There are three serious errors in this case, any one of which calls for a reversal of the judgment if the appellant is not to be denied a fair and impartial trial. And, regardless of the nature of the crime charged, or whether he is guilty or innocent, under our Constitution and laws he is entitled to be tried by a fair and impartial jury. Ark. Const, of 1874, Art. 2, §§ 7-10. Glasser v. U. S., 315 U. S. 60, 86 L. Ed. 680, 62 S. Ct. 457.

The errors mentioned are: (1) The refusal of the trial court to declare a mistrial after learning that Chief Gann Nalley’s brother-in-law, Horace Illing, was a member of the jury; (2) the action of the trial court in refusing to allow defense counsel to question the veniremen on their voir dire examination as to their feelings with reference to integration or segregation of the races; (3) the action of the trial court in-refusing to permit counsel for the defendant to question the venireman Smith as to how he arrived at an opinion as to the guilt or innocence of the defendant after it developed on his examination in chief that he did have such an opinion as would require evidence to remove.

We will deal with the errors in the order named. Eirst, the refusal of the trial court to declare a mistrial after learning that a member of the jury was a brother-in-law to Chief of the Eire Department Nalley, whose automobile was destroyed with dynamite, which offense was so closely connected with the dynamiting of the school building that the two crimes constituted a part of the same transaction. The defendant was on trial for* having participated in the bombing of a school building at 8th and Louisiana Streets in Little Rock. A short time before the bombing of the school building, Fire Chief Gann Nalley’s automobile, furnished to him by the Fire Department, while parked at his home, was destroyed with dynamite. During the trial of the case the State was permitted to prove the bombing of Chief Nalley’s car. In these circumstances it cannot be said that Chief Nalley and his wife would have been qualified jurors. Undoubtedly by reason of their close connection with the.case, Nalley and his wife, Horace Illing’s sister, would have been disqualified. In fact, they were disqualified by statute. Ark. Stats., § 43-1920 provides: “A challenge, for implied bias may be taken: First. "Where the juror is related by consanguinity, or affinity, or stands in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a member of the family of defendant or of the person alleged to be injured by the offense charged, or, on whose complaint the prosecution was instituted.”

Here Chief Nalley..and his wife,- the juror’s sister,wére injured; at least in a nominal manner, by the offense proven in this case to convict the defendant. The dynamite was exploded. in their yard, blowing up an automobile in the possession-and control of Chief Nalley. Fortunately, he and his wife, the juror’s sister, were not in the car at the time.

On the motion for a change of venue, numerous newspaper articles were introduced in evidence, referring to the dynamiting of the car. It is stated in one of the local papers of September 12,1959: ‘ ‘ The charges accuse each of these three with two offenses: The dynamiting of Fire Chief Gann L. Nalley’s city-owned station wagon, at Nalley’s home Monday night, and the dynamiting of the Little Rock School Board office at Louisiana Street.” Another article of September 9th states: “The police and the F. B. I. continued checking at the other two scenes of the bombings, the Baldwin Company at 322 Gaines Street, which houses the business office of Mayor Werner O. Knoop, and the home of Fire Chief Gann L. Nalley at 5221 Base Line Road, where a city-owned station wagon was blown up.” An article of September 12th states: “Two charges were filed in circuit court against Lauderdale, Sims and Perry. They are accused of dynamiting Nalley’s car and the school administration building.” Another article of September 8th states that Lauderdale and Sims are charged with the school board building bombing at 800 Louisiana and the Fire Chief’s vehicle. It can be assumed that Nalley complained of the dynamiting of his car. Hence, not only were he and his wife the injured parties within the meaning of the above mentioned statute, but they must have been two of the complaining parties. It will be recalled, now, that the defendant was on trial for dynamiting the school building. The State was permitted to prove the dynamiting of Nalley’s car, and Nalley’s wife’s brother was on the jury.

Nalley and his wife were disqualified as jurors, and under the statute the wife’s brother, the juror Illing, was also disqualified. He was closely related by consanguinity and affinity to the injured and complaining parties. The fact that it was not shown that Nalley and his wife went to the prosecuting attorney and filed a complaint is immaterial. In the circumstances they would be considered complaining parties within the meaning of the statute even if they had asked that the cases be dismissed. But even if Nalley and his wife should not be regarded as parties in the case at bar, they are parties in a similar case that would disqualify them in the present case. The courts have always been zealous to protect a party’s right to a fair and impartial trial, and even where it was learned after a trial was completed that the trial judge was a distant relative of the wife of the deceased in a murder case, the defendant was granted a new trial on that ground alone. Byler v. State, 210 Ark. 790, 197 S. W. 2d 748. If the trial judge is disqualified in a situation of that kind, a juror would be even more disqualified. A juror has much more to do with whether a defendant is convicted than does a trial judge. In the Byler case it was held that the murdered man’s wife was a party to the case, and the trial judge was disqualified to try the case because he was her second cousin. Here the juror Illing’s sister, a much closer relationship than that of a second cousin, was one of the injured parties. Dynamite was exploded in her yard, thereby destroying an automobile and endangering her life, and this offense was proved in the trial as going to show the defendant’s guilt. In the Byler case Judge Frank Smith said: “He [the trial judge] never thought about the deceased sheriff being a relative of his wife, as they had no social relations and the deceased had not voted for him when he was elected to office. It may be said also that the judge presided not only with ability, but with absolute impartiality. It may be asked, therefore, what difference it makes that this relationship existed between the presiding judge and the sheriff? The answer is, ‘ ‘Twill be recorded for a precedent and many an error by the same example will rush into the State. It cannot be.’ ”

In 31 Am. Jur. 17, it is said: “The right to a jury-trial embraces the right to a proper jury.” And in State v. Emery, 224 N.C. 581, 31 S. E. 2d 858, the court said: “It is clear, therefore, that the law not only guarantees the right of trial by jury, but also the right of trial by a proper jury.” In Hartford Bank v. Hart, 3 Day 491, the court held that a juror who had married the sister of a party in another case, depending on the same principles as the one on trial, was properly excused from sitting on the jury, though his wife was then dead. In Ledford v. Georgia, 75 Ga. 856, the court said: “The juror was disqualified, being a third cousin and within the ninth degree, which fact was unknown to the defendant and his counsel till after the trial . . . The principle on which the law rejects him is that he is not impartial; the same objection lies to his assertion that he was ignorant of the relationship at the time of the trial, after he had assisted in the conviction.”

Wright v. State, 12 Tex. App. 163, is closely in point with the case at bar. There the defendant was charged by separate indictments with stealing a number of horses belonging to different owners. There the court said: “Under these circumstances, although in the present case but one person is charged to have been injured by the commission of the offense charged in the indictment, we are of opinion that in the interest of a fair and impartial trial it was error for the court to hold a juror competent who was related within the prohibited degree to any of the persons injured by the offense against all, though the offense was charged by different indictments. In our opinion the defendant was deprived of a fair and impartial trial when there was forced upon him ... a son of an injured party and brother-in-law to another, in cases involving to some extent at least proof of the same facts necessary to the conviction of the defendant. ’ ’

There the situation was exactly as it is in the case at bar, and the court held that a brother-in-law was disqualified as a juror. The majority attempt to show that the Wright case has been impaired by the later decision of the Texas court in the case of Rogers v. State, 109 Tex. Cr. R. 88, 3 S. W. 2d 455. A reading of the Rogers case will show that the Wright decision has not been impaired to any extent whatever.

The juror Illing being disqualified, the next question which arises is, did the defense waive the disqualification by not discovering Illing’s relationship to the parties on the voir dire examination’? There was no waiver. True, defendant’s counsel did not ascertain on voir dire examination the relationship between Illing and the Nalleys, but of course Illing was fully conscious of the relationship and he knew that the defendant was charged with exploding dynamite in his sister’s yard and blowing up an automobile in possession of his brother-in-law. He should have volunteered the information. Regardless of how fair-minded Illing might be, it would be utterly impossible for him to be impartial in the circumstances, and the defendant was entitled to be tried by an impartial jury. We are not without precedent in a situation of this kind. We have two cases directly in point. In McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77, this Court held that the trial court properly discharged a juror after the jury was sworn, because he was related to the defendant. Such relationship had not been discovered on the voir dire examination, and this Court did not indicate that the State waived such disqualification by reason of the failure to learn of the relationship earlier. The Court cited Harris v. State, 177 Ark. 186, 6 S. W. 2d 34, where it was held that the trial court properly discharged a juror after evidence had been introduced in the case because the juror was on the defendant’s bond. These cases show conclusively that the mere fact that the relationship was not discovered on the voir dire is no sound reason for not remedying the situation when the discovery is made.

To sustain the view expressed by the majority, only the case of Jones v. State, 230 Ark. 18, 320 S. W. 2d 645, is cited, and that case is npt in point. There a juror was discharged over the objection of the defendant. There was no contention that the juror was related by consanguinity or affinity to a member of the family of the person alleged to have been injured by the offense charged or on whose complaint the prosecution was instituted. The juror in the Jones case was merely a sister to a policeman who was a witness for the State. If anyone had a right to object to the sister of the policeman serving as a juror, it would have been the defendant, and he made no objection whatever. In fact, he objected to the juror’s being discharged.

Next is the matter of the trial court’s refusing to permit counsel for defendant to question venireman in regard to their feelings about integration of the schools. It is a matter of common knowledge that the dynamiting of the school building grew out of the integration of the schools controversy in Little Bock. In addition, the State introduced testimony to that effect. The State’s witness, Sims, who blew up the Nalley car, testified that the dynamiting was done for the purpose of harassing the public and keeping the Negroes out of the white schools. There are people who firmly believe that the schools should' be integrated; on the other hand, others are firmly convinced that the schools should not be integrated. The situation in Little Rock has been such as to arouse the emotions of many people. Undoubtedly the dynamiting of the school building was calculated to prevent integration. In these circumstances the attorney for the defendant would want to know how a juror felt on the subject of integration. In all probability he would exercise a peremptory challenge on a venireman who strongly favored integration. But the court would not permit the veniremen to be questioned on how they felt on that subject. Again the majority have not cited a single authority that sustains the view expressed. The majority quote from 31 Am. Jur. 121. Instead of sustaining the majority, it is clear that the cited text is favorable to the contention made by appellant. As heretofore pointed out, it was of the utmost importance for defense counsel to know, how the jurors felt on the integration question, but he was denied the right of getting this information from the veniremen. The majority state: “When relevant'and of significance to the ease being tried, inquiry should be allowed to be made on voir dire as.to membership in.an organization.’-’ But the majority do not follow this principle and do not point out in what way a venireman’s convictions on the integration question would be immaterial when a person is charged with a very serious crime committed in an attempt to prevent integration, as proved by the State. In Bethel v. State, 162 Ark. 76, 257 S. W. 740, Judge McCulloch said: “ ... an accused has a right, for the purpose of determining the extent- to which he will avail himself of the statutory peremptory challenges, to inquire as to the membership of the proposed jurors in an organization ‘where it is shown that there are reasons why membership in an organization might influence the parties to the litigation in the exercise of peremptory challenges,’ and ‘that the court ought to permit the inquiry to be made, if it. appears to be made in good faith.’ ”

In the case at bar the State proved that the defendant committed a crime in an attempt to prevent integration of the schools. The defense attorney might have been extremely negligent if he had failed to attempt to learn how a venireman felt about integration. The situation is likened to a case where a person is charged with bootlegging liquor. Certainly defense counsel should be permitted to inquire if a venireman is a prohibitionist. In the case of Pendergrass v. State, 121 Tex. Cr. R. 213, 48 S. W. 2d 997, the charge was “illegally transporting liquor,’’ and, although the defendant did not make his record properly, the court said: “It would have been proper for appellant’s counsel to elicit from each juror whether or not he was a prohibitionist, in order that he might intelligently exercise his peremptory challenges. (Citing cases.) The right to appear by counsel, guaranteed by the Bill of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute. ’ ’ (Citing cases.)

In 50 C. J. S. p 1043, it is said: “With the exception of such questions as the juror may be privileged from answering on the ground that the answer would tend to degrade or incriminate him ... a juror may be fully examined and asked any questions which are pertinent to show the existence of bias or prejudice, and may be examined as to any bias with respect to the nature of the case or the subject matter of the litigation as well as with respect to the parties personally.” And in 50 C. J. S. p. 1036, it is said: “The right to a trial by a fair and impartial jury includes the right to have the jurors sworn and examined as to their qualifications, and it is error for the court to deny this right if properly requested before the jury is sworn. This right may be exercised by either party to a civil or criminal action, and exists with respect to each particular case regardless of the fact that the same jurors have been examined in other cases. The purpose of voir dire examination is to determine whether a juror possesses the necessary qualifications, whether he has prejudged the case, and whether his mind is free from prejudice and bias, so as to enable the party to ascertain whether a canse for challenge exists, and to ascertain whether it is expedient to exercise the right of peremptory challenge, . . . ”

The next point is the refusal of the trial court to permit defense counsel to continue the examination of the venireman Smith after he had stated he had an opinion as to the guilt or innocence of the accused which would require evidence to remove. The majority state: “It was not shown that Smith had discussed the ease with any witness.” Neither does the record show that he had not discussed the case with witnesses. Mr. Smith stated frankly and unequivocally that he had an opinion as to the guilt or innocence of the defendant and that it would take evidence to remove such opinion, but on further questioning by the court he stated that he could give the defendant a fair and impartial trial. The defense attorney then attempted to question Smith further about his opinion, but the court ruled that no further questions along that line would be permitted. The majority state that the court “ruled that . . . the juror would not be excused for cause,” and then a long line of cases is cited to the effect that the mere fact a venireman has an opinion based on newspaper reports or rumor does not disqualify him. Appellant makes no contention that such is not the law, but appellant does say that when the venireman stated that he had an opinion based on what he had “seen, read and heard,” he was prima facie disqualified and that he remained disqualified until it is shown by further questioning that what he had seen, read and heard was only newspaper items or rumors and that he had not actually been a witness to the commission of the crime and had not talked to witnesses who purported to know the facts in the case.

The State made no effort to show how Mr. Smith arrived at the opinion which he stated he had as to the merits of the case, and the defendant was not allowed to fully develop the facts on that point. The Court said, in Sneed v. State, 47 Ark. 180, 1 S. W. 68: “The entertainment of preconceived notions about the merits of a criminal case renders a juror prima facie incompetent. But when it is shown that the impression is founded upon rumor, and not of a nature to influence his conduct, the disqualification is removed.” To the same effect is Hardin v. State, 66 Ark. 53, 48 S. W. 904. In the case at bar the disqualification was never removed.

For the reasons stated herein, I respectfully dissent.

George Rose Smith, J., joins in that part of this dissent pertaining to the juror Illing.

Johnson, J., joins in this dissent.

Jim Johnson, Associate Justice,

dissenting. I agree with every word of Mr. Justice Robinson’s dissenting opinion in this case and in addition to the reasoning thereof I would also reverse because of the refusal-of the trial court to grant defendant’s Petition for Change of Venue.

I recognize'that where a Petition for Change of Venue is controverted by the State and controverting evidence is offered, it is a matter of the court’s sound discretion as to whether the petition should be granted. Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. On the other hand, this does not mean that the court may arbitrarily deny such a petition merely because it is controverted or merely because there is controverting evidence produced. I am firmly convinced that in denying this petition the trial court misconstrued the rule of the Leggett case, supra, and abused his discretion. Apparently, the trial court felt that the Leggett case held that if prospective jurors, examined before the petition is heard, do not disqualify, the petition should be denied. It should be noted that over the protest of the appellant, and before evidence was taken on his Petition for Change of Venue, the trial court had the Clerk call the 27 jurors left on the panel of 50 and the court asked three general questions of this group. These questions were whether any member of the panel knew of any reason why he should not serve on the jury in the case and whether what the members of the panel had seen, read and heard about the crime .would prevent them from giving both the State and the defendant a fair and impartial trial. Some of the panel answered “No, sir” and the court asked one other question requesting any member of the jury who had his mind made up to so indicate. This question was not answered. As previously indicated, this was done over the protest of the appellant and when he did not have an opportunity to interrogate said jurors, even though he told the court that he had 40 or 50 questions to be addressed to every member of the panel. The court’s erroneous misconception of the holding of the Leggett case becomes even more demonstrable by a reference to the record wherein the oral statement of the court denying defendant’s Petition for Change of Yenue is set forth verbatim. In denying this petition, the court made it .abundantly clear that he based his ruling wholly and solely upon the answers of the jurors to the three questions heretofore set forth ancl that he had not considered .the evidence which ivas adduced in support of and in •opposition to the Petition for Change of Venue. 1 do not believe that the holding of the Leggett case may be so simplified. In the Leggett case, the Petition for Change •of Yenue was filed on the 3rd day of the trial supported by the affidavits and testimony of two witnesses. One of these witnesses knew little about the sentiment in the •county except that prevailing in two wards in Little Rock. It cannot be said that this made even a prima facie showing as it is necessary that at least two of the affiants ■or witnesses know the state of mind of the inhabitants of "the whole county. Brown v. State, 134 Ark. 597, 203 S. W. 1031. The court held in the Brown case that if a witness was not acquainted with the sentiment over the county generally, the trial court was at liberty to find that he was not a “credible person” as required by the statute. Further, at the time of the hearing in the Leggett case, •eleven jurors had already been chosen, and this Court •said on appeal:

“Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment, the court was entitled to consider the view of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a studied effort to inflame the public. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. Despite the defendant’s theory that it was impossible to obtain a fair-minded jury within the county, the court was convinced by testimony heard at first hand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority. ’ ’

The facts in the case at bar and those in the Leggett case are completely different. Where the appellant Leggett did not have two “credible” witnesses on his petition, appellant here had three witnesses who met the test of the statute together with several others who corroborated these witnesses as to particular sections of the county. Appellant’s three witnesses were the Hon. Dan Sprick, State Senator of Pulaski County, a former Mayor and Alderman of the City of Little Bock; Mr. Noble Strait, a competitor of the appellant; and Mr. B. C. Limerick, Jr. I will not take space to identify all of the supporting witnesses; suffice it to say, their testimony may be found in the record. There is another striking-difference between the Leggett case and the case at bar in that the court said in the Leggett case that there appeared to be no studied effort on the part of news reports to inflame the public. In this case, the trial judge himself said: “I will take judicial knowledge that the Gazette is a pro-integration newspaper.” On the hearing on the petition, 93 news articles, pictures, cartoons and editorials from the two Little Bock newspapers were offered in evidence. I say that those articles, pictures, cartoons and editorials did represent “a studied effort to inflame the public”. It cannot be said that cartoons on the editorial pages bearing such captions as “Wanted — Public Enemy No. 1”; “Triumph of Law and Order”; and “Tall in the Saddle” were not studied efforts to inflame the public against this appellant. There were editorials bearing such captions as “Fast Work in the Bombing Case” wherein it was asserted that the leaders moved with great speed and determination to “track down the guilty parties” and those who underwrote a reward fund of $25,000 for arrest and conviction were commended; editorials captioned ‘ ‘ The Performance of Little Bock’s Finest” wherein the news organ commended “swift decisive work of the Little Bock Police and the Federal Bureau of Investigation” together with the diabolically clever suggestion (intended to warp the public’s mind as to the burden of proof in a criminal case) to the effect that the defendants would receive a fair trial; “with ample opportunity to clear themselves if they are innocent;” editorials captioned “fog” suggesting that the defendants were communists and that they should he checked out on this score hy the F. B. I.; and editorials captioned “An act of terror and its roots” wherein it was suggested that the only redress for the damage done: “lies in what we now do — in our clear demonstrations that we will no longer tolerate apostles of discord, the preachers of dissention and the advocates of rebellion who have brought this shame upon our city.” These cartoons and these editorials represented studied efforts to inflame the public and to preclude appellant from receiving a fair trial. The action of the Prosecuting Attorney in publicly stating that defendant’s $50,000 bond should not be reduced and that: “this defendant has largely forfeited his right in organized society ’ ’ can hardly be viewed as an effort to assure to the appellant a fair trial by unbiased jurors. In fact, in Sisson v. State, 168 Ark. 783, 272 S. W. 674, it was held that where a sheriff had, in his campaign for election, made speeches over the county wherein he stated that he was going to send the defendant “to hell or the penitentiary one, if he was elected sheriff” was such as to create prejudice in the minds of the inhabitants of the county against the defendant and furnished full justification for the belief of an affiant that the minds of the inhabitants of the county had been prejudiced against the appellant. The record shows that Mr. Holt was three times honored with the office of Prosecuting Attorney by the very people from whom prospective jurors would be selected. The actions of the Pulaski County Bar Association in adopting resolutions condemning participants in acts of terrorism and commending the law enforcement officers for their activities; contributing to-the Chamber of Commerce reward fund and advising the law enforcement officers and the officials of the county that: ‘ ‘ This Association, upon request, will assist in any wray possible in the investigation of the said explosion or the prosecution of persons charged with responsibility therefor” were certainly not calculated to insure a fair trial to appellant. Lawyers are leaders in the community and when a whole county bar association arrays itself on the side of the prosecution before trial and without fee or hope of reward offers to prosecute the persons-charged with the crimes, it cannot help but engrave an impression upon the minds of the public to the effect that those charged are guilty. When business and professional leaders in the community are quoted in the press as condemning the crimes in question, it cannot be said that such statements do not work grave damage to the cause of a defendant awaiting trial on such charges. When the President of the Little Rock Council of P. T. A. says: “I think the penalty should be a stiff, severe one”; such a statement cannot be said to be creating an atmosphere of sweetness and light for a trial of the charges. When the District Superintendent of the Methodist Church and the Episcopal Bishop of Arkansas condemn the acts in public news stories and the Bishop calls for: “A common effort to guard the safety of every man, woman and child who inhabits the city”, how can it be said that these news stories would not work for the conviction of the defendant as surely as the testimony of an eye witness ?

When it is shown that these statements of condemnation by community leaders were published in one newspaper with an average circulation of 45,683 in the county of venue and another newspaper with a circulation of 44,000 in the county of venue and it is further shown that the same matters were given publicity by television and radio, I respectfully submit that such publicity cannot be said to have no effect upon the minds of prospective jurors. This was not an ordinary case where a juror may have read one or two newspaper articles. This was a situation where there had been incessant publicity from the very beginning. When the business manager of the Arkansas Gazette said: “We have run more than one editorial with respect to acts of terrorism and have even offered cartoons and we are quite proud of the orbit of accounts. We hope that people will form an opinion from what we say,” it certainly cannot be said that the news reports, cartoon pictures, and editorials in ■ that publication were not a studied effort to inflame the public. When the Chamber of Commerce can quickly raise $25,000 to prosecute the persons charged with the crime, it can hardly be said that the contributors to such fund are indifferent.

Regardless of the guilt or innocence of a person or persons being tried for the commission of a crime, basic concepts of our system of justice demand that every defendant receive a fair trial by a fair and impartial jury. I sincerely fear that the opinion of the majority in the case at bar holding that those things pointed out by Mr. Justice Robinson, and the results of the conduct of prominent persons and newspapers, as set out above, do not constitute, error, has effectively deprived this defendant and by precedent all citizens of this State of the precious right of a fair trial by a fair and impartial jury. For these reasons I cannot conscientiously do less than dissent to the opinion of the majority with all the vigor at my command.

       See also 50 C. J. S. p. 1041, “Juries” § 275. A clear statement of the law is also to be found in Reed v. Commonwealth (Ky.), 314 S. W. 2d 543.

       As regards evidence of other dynamitings the Court instructed the jury as follows:
      “You are instructed that evidence introduced by the State in this case, of similar offenses and a planned similar offense which was to occur prior to the offense charged in the information, was admitted solely for the purpose of showing the defendant’s intent, if any; motive, if any; guilty knowledge, if any; and his part in a common scheme, if any; and you may consider it for this purpose and this purpose only. You may consider such evidence then only if you find beyond a reasonable doubt that similar offenses occurred or another similar offense had been planned and that the defendant participated in the alleged common design. The defendant is not on trial for any offense except the offense charged in the information.”

       Some of our cases on corroboration of accomplices presenting a jury question are Miller v. State, 155 Ark. 68, 243 S. W. 1063; Knight and Johnson v. State, 228 Ark. 502, 308 S. W. 2d 821; Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304; and Vaughn v. State, 58 Ark. 353, 24 S. W. 885. At the request of the defendant, the Court instructed the jury as follows:
      “You were told that under the law of the State of Arkansas, the defendant, E. A. Lauderdale, cannot be convicted upon the testimony of the accomplices, J. D. Sims, Jessie Perry, and Samuel Graydon Beavers, unless you find that the testimony of said accomplices is corroborated by other evidence tending to connect Ed Lauderdale 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. In other words, the rule is that the evidence, independent of that of the accomplice, must tend to connect the defendant with the commission of the crime.”

         In Jones v. State, 230 Ark. 18, 320 S. W. 2d 645, we held that a juror was not disqualified as a matter of law even when related to a witness in a case.

       Appellant cited the Texas Appeals case of Wright v. State, 12 Tex. App. 163, decided in 1882. In that case it was held that a juror was disqualified because his family had a horse alleged to have been stolen by the defendant then on trial for stealing a horse from another party. No cases or authorities were cited to sustain the Court; and the holding is considerably weakened by the subsequent Texas ease of Rogers v. State, 109 Tex. Cr. R. 88, 3 S. W. 2d 455, decided by the Texas Court of Criminal Appeals (the highest court in criminal cases) in 1927. In the_ Rogers case the Court held that a juror was not absolutely disqualified because of relationship to the prosecutrix, and then the Court said: “We find in many opinions expressions regarding disqualifications of jurors or incompetence of jurors which are inaccurate to say the least.” The Court also cited, inter alia, Wright v. State, 12 Tex. App. 163, and said: “Said cases present facts only partly similar to those before us, and, in so far as the opinions advanced the suggestion that jurors were incompetent or disqualified, same are not accurate.”


source: Caselaw Access Project

author: George Rose Smith, J. McFaddin, J.,

license: Public Domain

text:
    Pulaski County Board of Equalization v. American Republic Life Insurance.
    5-2305
    342 S. W. 2d 660
    Opinion delivered February 13, 1961.

      Mehaffy, Smith & Williams, by William H. Bowen and Jerry T. Light, John Jernigan, Prosecuting Attorney, John W. Barron, Jr., Deputy Prosecuting Attorney, for appellants.

      Wright, Lindsey, Jennings, Lester <& Shults, for appellee.
   George Rose Smith, J.

The principal issue presented here is the constitutionality of Act 396 of 1955, which provides a special procedure for the taxation of shares of stock in life insurance companies, hanks, and trust companies. Ark. Stats. 1947, 84-510 and 84-511. The present controversy over the proper assessment of the stock in the appellee corporation has gone forward in the usual way, proceeding from the county assessor’s original assessment to the equalization hoard and thence to the county court and the circuit court. This appeal is from a judgment holding the act in question to be invalid and exempting the appellee from compliance with its provisions.

A preliminary issue is raised by one of the appellants, the Little Rock School District. When this proceeding reached the circuit court the school district sought to intervene, asserting that it is one of the agencies entitled to share in the revenues derived from the property tax and that it therefore has a direct interest in the outcome of the case. The circuit court refused to permit the intervention, although counsel for the school district were allowed to participate in the case. It is now contended that the district was entitled to intervene as a matter of right.

The court below was right in refusing to permit the intervention. Necessary parties may intervene as a matter of right, but the question of permitting others to enter a case lies within the court’s discretion. “Intervention is not a common law right, but has long been recognized by the courts upon the principle that a party should be permitted to do that voluntarily which, if known, a court would require to be done.” Board of Directors of St. Francis Levee Dist. v. Raney, 190 Ark. 75, 76 S. W. 2d 311. The school district is obviously not a necessary party to every proceeding for the determination of the assessed value of taxable property. By statute the prosecuting attorney has the duty of representing the public in a proceeding such as this one. Ark. Stats., § 84-708. If the school district may intervene as a matter of right the same privilege would have to be extended to the county, the various cities, other school districts, the holders of municipal bonds, and all the other beneficiaries of property taxation. There is no reason at all for saying that the circuit court abused its discretion in this case.

Turning to the merits, the basic purpose of Act 396 is to subject certain shares of stock to property taxation. To this end the president, secretary or principal accounting officer of each domestic life insurance company and of each bank or trust company is required to file with the assessor of the county where the company’s principal office is situated a sworn statement setting forth certain specified information about the market value of the corporation’s outstanding stock. The ensuing property tax is to be paid by the corporation, but the act declares that its purpose is to recognize the shares of stock as the property to be taxed. In harmony with this view the statute empowers the corporation to pass the tax on to its stockholders by deducting its amount from any dividend accruing on the stock. The act provides a criminal penalty for an officer’s failure to file the required return and also directs that the corporate charter be forfeited.

Act 396 was evidently patterned after Act 262 of 1917. The earlier statute, however, was a comprehensive measure purporting to apply to the shareholders of all corporations. Section 1 of the 1917 act provided for the assessment of stock in domestic insurance companies, while Section 2 applied to stock in all other corporations, domestic and foreign. In two decisions of this court Section 2 was held unconstitutional, first as to foreign corporations and then as to domestic ones. State ex rel. Atty. Gen. v. Lion Oil Ref. Co., 171 Ark. 209, 284 S. W. 33; State ex rel. Atty. Gen. v. Williams-Echols Dry Goods Co., 176 Ark. 324, 183 Ark. 1150, 3 S. W. 2d 340. Finally, in 1954, these cases were construed as having also invalidated Section 1 of the 1917 act. Mashburn v. Auto Finance Corp., 224 Ark. 45, 271 S. W. 2d 621. At the next' meeting of the legislature Act 396 of 1955 was adopted. Thus there is reason to think that the legislature enacted Act 396 as a substitute for Section 1 of the 1917 statute and by oversight failed to realize that the remainder of what had originally been a comprehensive statute had previously been held to be invalid.

With this background we come to the constitutional question, which is squarely presented and thoroughly discussed in the briefs. As a secondary contention, however, the appellee argues that even if the statute is valid its provisions for certain deductions from the market value of the stock should be so interpreted as to exempt this particular corporation from the tax. We find it unnecessary to explore this perplexing problem in statutory construction, for we are firmly of the view that the judgment must in any event be affirmed upon the controlling constitutional issue. The validity of Act 396 is clearly a matter of public interest, and we see no reason for seeking to postpone a decision of this question, especially as it would certainly be presented again within the immediate future. See Glover v. Henry, 231 Ark. 111, 328 S. W. 2d 382.

The main challenge to the statute is based upon this language in Article 16, § 5, of the Arkansas Constitution: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, makingthe same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another. species of property of equal value.” The section then enumerates all the classes.of exempt property, such as that used for public purposes, charitable purposes, etc., and the next section prohibits any other exemption from the property tax.

The appellee forcefully contends that Act 396 is in direct conflict with the constitution in that it singles out ■ the stock of life insurance companies, banks and trust companies for the assessment and collection of a property tax. It is pointed out that the substantial burden of taxation imposed by this act upon the stockholders of a few selected corporations is not shared by many other persons similarly situated, such as the stockholders in the various other kinds of insurance companies, in building and loan associations, in mercantile corporations, and, in fact, in every other type of business corporation.

The appellants’ attempt to defend the validity of the statute really consists of two arguments which must be examined separately, as they are not entirely consistent with one another.

On the one hand the appellants take the position that the statute is valid even though it involves some discrimination, because the legislative classification is said to be a reasonable one. Here it is pointed out that life insurance companies, banks, and trust companies are all financial institutions that customarily maintain extensive investments in tax-exempt United States bonds. This situation results in the payment by these corporations of relatively small income taxes and personal property taxes. Hence, the appellants say, the legislature was justified in subjecting the shareholders in these companies to a property tax that is not imposed upon the owners of other corporations.

This argument rests upon a basic misconception of the constitutional clause in question. In the levy and collection of property taxes classification is permissible only when it does not run counter to the fundamental requirement of equality. The property of public utilities, for example, may be assessed differently from other property, owing to the peculiar difficulties incident to the valuation of such utilities. But the differing methods of assessment must still result in all property of the same value being taxed at the same rate. This point was made clear in Hays v. Mo. Pac. R. Co., 159 Ark. 101, 250 S. W. 879: “It is true that property such as railroads may be classified for taxation and assessed by different methods and by different officers from those assessing other property. Bnt the object is nevertheless the same, and that is to arrive at the value of the property and tax it according to its valué, making the same equal and uniform throughout the State. While exact equality in taxation cannot be achieved, intentional inequality of assessments violates the mandate of the Constitution in question and invalidates the tax.”

The language of the constitution is too plain to be misunderstood: “No one species of property . . . shall be taxed higher than another species of property of equal value.” It could not seriously be contended that shares of stock in a life insurance company might constitutionally be taxed at twice the rate applicable to fire insurance company shares of equal value. Still less can it be argued that the one class of stock may be subjected to a tax from which the other class is wholly exempt. Among our uniform holdings to this effect a recent example is McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428. There we held that the constitution prevents the legislature from exempting state bonds from property taxation, when privately owned.

The appellants’ alternative defense of Act 396 narrows down to an insistence that this statute actually involves no discrimination when it is considered in the light of our tax laws as a whole. In substance it is contended that all personal property is required by law to be assessed for taxation, and therefore it is immaterial whether the assessment and payment are made by the corporation itself, under Act 396, or by the stockholder under the general laws.

This argument is unsound. To begin with, our general corporation law provides that no stock issued by a corporation created under that act shall be taxed for any purpose when owned by a nonresident of the state. Ark. Stats., § 64-1004. Thus the statutes as a whole involve discrimination in this respect: A nonresident who owns stock in an ordinary business corporation is not subject to any property tax upon his holding, but under Act 396 a nonresident who owns stock in a life insurance company is compelled to pay a property tax upon his holding.

Counsel’s only answer to this inconsistency in the law is that we should declare this section of the general corporation statute to be invalid, as violating the constitutional prohibition of exemptions other than those granted by the constitution itself. Apart from our disinclination to strike down one act simply as a means of upholding a different act, it is evident that the mere elimination of a section of the general corporation law would not end the discrimination created by Act 396.

It is apparent that Act 396 would prove to be an efficient tax-gathering measure, for delinquency carries a criminal penalty and a forfeiture of the corporate charter. Hence the stockholders of life insurance companies, banks and trust companies, would in practice be compelled to pay the taxes levied by Act 396. By contrast, however, the stockholders of other corporations receive more lenient treatment, as the general laws for the assessment of personal property do not carry severe penalties for disobedience. Ark. Stats., 84-424, 84-428, and 84-440. It is a matter of common knowledge that intangible personal property is actually not assessed at all in many instances, and certainly the voluntary assessment of such property does not reach the degree of uniformity that could be expected under Act 396. Consequently the situation created by Act 396 is analogous to the familiar rule that statutes, although ostensibly fair, may become invalid as a result of inequalities in administration. Carr v. Young, 231 Ark. 641, 331 S. W. 2d 701.

Finally, even if we should assume that the voluntary assessment of corporation stock pursuant to general law would be just as uniform as the compulsory assessment under Act 396, the county and the other beneficiaries of the general property tax are still in no better position to defend Act 396. For if this assumption be true then no revenue will be lost as a result of the invalidation of Act 396, inasmuch as it is being assumed that the stockholders in life insurance companies and the other concerns falling within Act 396 will then voluntarily make the same assessments and pay the same taxes that would result from the enforcement of Act 396. Thus it conclusively appears that the appellants would gain nothing if there really existed the only conceivable set of facts upon which Act 396 could be sustained.

Affirmed.

McFaddin, J., dissents.

McFaddin, J.,

dissenting and concurring. This suit is an attack by the appellee Insurance Company on Act No. 396 of 1955, as amended by Act No. 269 of 1959, all as now found in § 84-510, Ark. Stats.; and I will hereinafter refer to the section of the statutes. The Insurance Company attacked the statute on three grounds: (1) it violated the Arkansas Constitution; (2) it violated the Federal Constitution; and (3), even if constitutional, the words “all real estate” mean all real estate, whether in Arkansas or in some other jurisdiction. The majority opinion invalidates the statute on the first point urged by the Insurance Company, i.e., violation of the Arkansas Constitution. I disagree with that holding; and, therefore, I dissent.

I. The Unconstitutionality Of The Statute. The majority holds that § 84-510, Ark. Stats, conflicts with that part of Art. 16, § 5 of the Constitution, which provides that, “No one species of property . . . shall be taxed higher than any other species of property of equal value. . . .” I maintain that under the taxing statutes of Arkansas, the Life Insurance Company stock here sought to be taxed is not taxed higher than is the stock of any other corporation, and that is the first point to which I direct my remarks.

Under the § 84-510, Ark. Stats. here involved, life insurance companies, hanking associations, and trust companies report the value of the shares of capital stock. But after the total valuation figure is reported, then 20 per cent, thereof is fixed as the assessment value, and then the millage is determined on such assessment value. That is exactly the same procedure that is used in taxing all other property in this State subject to taxation. In § 84-428, Ark. Stats., in discussing the rules for valuation, the whole procedure is outlined, and it is stated that the person making the return will list his stocks and bonds. But in § 84-424, Ark. Stats, it is stated that a person will list all of his stocks and bonds except ‘ ‘ any share or portion of the capital stock ... of any company . . . which is required to list or return its capital and property for taxation in this State. ’ ’ In other words, all shares of stock are to be listed by the individual taxpayer, except those shares of stock on which a capital stock tax has been paid by the corporation. So the capital stock tax paid by the corporation in this case does not result in a higher tax rate than is paid by the individual on other shares of stock.

There are several types of corporations which pay the direct capital stock tax, so that the individual shareholder is not required to assess the shares he holds in such companies. This is true of building and loan associations (under § 84-507), and of bridge companies, savings banks, etc. (under § 84-501, Ark. Stats.). Therefore, § 84-510, Ark. Stats. — contrary to what the majority says — does not result in a law requiring the assessing of life insurance company stock and bank stock at a different or higher rate than that of any other stock. The only difference is, that the State has found that it is more convenient to have certain corporations pay the tax and charge it hack against the stockholders. The State has a right to determine whether the individual shall pay his tax personally on his own stock, or whether the company shall pay the tax on the stock and charge it back against the stockholder. It is merely a question of the application of the principle of the withholding tax, or the sales tax. The sales tax is paid by the purchaser but the merchant acts as the agent of the State in collecting and remitting the tax to the State, and we have held that such method of collection is constitutional. Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91.

In the case at bar, the Life Insurance Company operates as the agent of the State to collect the tax from the stockholder and remit the tax to the State. The rule is well recognized that such procedure is valid. In 51 Am. Jur. 719, “Taxation” § 801, in discussing the validity of statutes requiring the corporation to pay the tax on the shares, the text reads:

“State statutes which impose on corporations the duty to pay taxes levied against the individual shareholders upon the shares held by them, giving the corporation a remedy over against the stockholder by way of a lien upon his stock and/or a right or reimbursement out of future dividends, have been upheld against various constitutional objections. While most of such statutes involve taxation of bank shares, the rule has been applied to taxation of shares of other corporations, such as trust companies, loan and investment companies, and insurance companies, and no reason is perceived for assuming that there is any difference in principle between statutes taxing bank shares and statutes taxing the shares of other kinds of corporations or of corporations generally.”

We upheld the validity of such form of taxation in State v. Bodcaw Lumber Co., 128 Ark. 505, 194 S. W. 692. Back as early as 1883, we had a statute in Arkansas (<§, 84-501, Ark. Stats.) which provided for a capital stock tax against banks. As previously mentioned, we still have statutes governing building and loan associations and some other companies; and I cannot see how the majority can say that the challenged statute is unconstitutional without ipso facto impairing all of the statutes affecting similarly classified companies.

The majority opinion makes reference to § 64-1004, Ark. Stats., which is a portion of our Business Corporation Law, and which says that stock issued under the Business Corporation Statute shall not be taxed for any purpose when owned by a non-resident of the State. But the corporations with which we are concerned in this case are not organized under the Business Corporation Statute. We are dealing here with banks, life insurance companies, and building and loan associations; and each of these is organized under a statute entirely distinct from the Business Corporation Statute, which is § 64-1004, Ark. Stats. There is no language, that I have been able to find in the statutes for the organization of banks, insurance companies, and building and loan associations, which say that nonresident stockholders of those corporations shall never pay a tax on their stock. That provision is peculiar to business corporations. As a matter of fact, the appellee Insurance Company concedes on page 20 of its brief in this case:

‘ ‘Appellee is not contending under this principle that Arkansas does not have jurisdiction to place a nondiscriminatory tax on shares of stock owned by nonresidents in domestic corporations.”

The majority opinion says :

“It is a matter of common knowledge that intangible personal property is actually not assessed at all in many instances, and certainly the voluntary assessment of such property does not reach the degree of uniformity that could be expected under Act 396. ’ ’

There is nothing in the record in this case to support the above quoted statement. On the contrary, we have cases in Arkansas — recent cases — that the State is attempting to have correctly assessed and taxed on a uniform basis of 20 per cent, of valuation all tbe property subject to taxation in this State. If the quoted statement above — i.e., ‘ ‘ common knowledge ’ ’ — is to be used to support a decision in this case, then tbe Court could bold that all tax statutes are void because: “It is a matter of common knowledge that . . . tbe property is actually not assessed at all in many instances, •. . .”

Tbe last paragraph of tbe majority opinion reasons that if § 84-510 is stricken, then tbe stock will be assessed by tbe individual owners and no loss will occur. That is an “ad hominem’’ argument. Tbe Legislature has a right to decide bow tbe tax will be collected'and it is not for this Court to strike down a valid taxing measure because the property might be taxed some other way. Besides, we are considering in this case a tax that was due in 1960 on valuations in 1959, and to strike out § 84-510 is to allow some property to escape taxes for at least two years. I cannot see bow tbe language in tbe majority opinion should be of compelling importance. Furthermore, if it is “common knowledge ’ ’ that intangible personal property is not actually assessed, then tbe concluding paragraph of tbe majority opinion loses its force altogether, because, when § 84-510 is stricken, tbe ‘ ‘ common knowledge ’ ’ argument would leave tbe property free of taxation.

To argue further would unduly prolong this dissent. I respectfully dissent from all of tbe majority opinion which bolds that § 84-510, Ark. Stats, is unconstitutional.

II. The Meaning Of The Words “All Beal Estate’’ As Contained In The Statute. Even though I am firmly convinced that tbe statute is valid, nevertheless, I am of tbe opinion that tbe decree in this case should be affirmed because of tbe factual situation which involves tbe words, “all real estate”, as found in Sub-division (6) of tbe statute. The majority opinion never discusses this point; but it is the point that should have received first consideration in the case, because it is a settled rule that constitutional questions are discussed only when the case cannot be decided on another ground. See McLeod v. Dilworth, 205 Ark. 780, 171 S. W. 2d 62; and Wood v. Henderson, 225 Ark. 180, 280 S. W. 2d 226; and cases there cited. Even though the majority opinion proceeds in opposition to the rule of these cases, it is my view that this case can easily be decided without considering any constitutional question.

The American Republic Life Insurance Company, in accordance with 7 84-510, Ark. Stats., reported that the value of all of the shares of its stock was $1,300,000.00; and that the assessed value of all real estate owned by the Company was $1,431,890.00. Deducting the assessed value of the real estate from the capital stock, there was left a negative figure of $131,890.00. In the trial of the case, the Insurance Company listed each item of real estate and the assessed value thereof. The real estate was located in Ohio, Texas, New York, and Florida. None of the real estate was located in Arkansas. The Board of Equalization, as well as the County Court on appeal, took the position that the words ‘ all real estate ’ ’ meant only real estate located in Arhansas; and, on that basis, fixed the assessed valuation of the stock at 20 per cent, of the value of the shares, without any deduction for real estate. It is my view that the words, ‘ all real estate ’ ’, mean all real estate, wherever located. Because of that conclusion, there would be no capital stock tax due by the appellee Insurance Company; and this is the sole basis on which I agree to an affirmance of the case.

Section 84-510, Ark. Stats, says that the insurance company shall state, ‘ ‘ (5) the aggregate value of all shares of stock. (6) The assessed value of all real estate owned by the company . . . the sixth item shall be deducted from the fifth item, and the remainder shall be taken as the basis for assessing the shares of stock of said company . . .” The facts in this case are undisputed. The only-question is, whether the words, “all real estate owned by the company, ’ ’ mean only real estate in Arkansas or mean real estate wherever located. To say the least, the words, ‘ ‘ all real estate, ’ ’ should mean “ all”; and if the words do not so mean then there is an ambiguity in the statute. In the statutory construction of revenue laws, taxing statutes must be construed most strongly against the sovereign and most liberally in favor of the taxpayer, and any ambiguity in a tax statute must be resolved in favor of the taxpayer and against the taxing power. See Scurlock v. City of Springdale, 224 Ark. 408, 273 S. W. 2d 551; Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687; and cases there cited. The words, ‘ ‘ assessed value of all real estate owned by the company,” as found in Sub-division (6) of the statute, would clearly mean all real estate, wherever found, unless the words, “all real estate,” have such a definite judicial interpretation that they mean only ‘ ‘ all real estate in Arkansas.” In State v. Williams-Echols, 176 Ark. 324, 183 Ark. 1150, 3 S. W. 2d 340, in discussing the words, “all corporations, ’ ’ we said: ‘ ‘ The language is plain, and refers to all corporations.”

The appellant cites the cases of State v. Bodcaw Lbr. Co., 128 Ark. 505, 194 S. W. 692; Crossett Lbr. Co. v. State, 139 Ark. 397, 214 S. W. 43; and State v. Gloster Lbr. Co., 147 Ark. 461, 227 S. W. 770, as holding that in previous statutes involving tax on capital stock we have held that the words “all real estate” mean only all real estate in Arkansas. It would unduly prolong this opinion to discuss these cases and the particular statutes involved. It is sufficient at this time to say that they do not definitely settle the point adversely to the appellee Insurance Company in this case. So, I would affirm the Circuit Court judgment on the facts here presented, and avoid all constitutional matters. The Circuit Court and the majority of this Court achieved the correct result, but each by a process of reasoning: with which I do not aeree.

       I forego any discussion as to the holdings in State v. Lion Oil Co., 171 Ark. 209, 284 S. W. 33; State v. Williams-Echols, 176 Ark. 324, 183 Ark. 1150, 3 S. W. 2d 340; and Mashburn v. Auto Finance, 224 Ark. 45, 271 S. W. 2d 621. It is my view that the absence of a severability clause in the statute caused the decisions in the two last cited cases.

       Two such recent cases are: St. Louis-San Francisco Ry. Co. v. Ark. Public Service Comm., 227 Ark. 1066, 304 S. W. 2d 297; and Kansas City So. Ry. Co. v. Ark. Commerce Comm., 230 Ark. 392, 323 S. W. 2d 193.


author: Paul Ward, Associate Justice.

text:
    Dermott State Bank v. Parker Lumber Co.
    5-2282
    342 S. W. 2d 676
    Opinion delivered February 13, 1961.

      John F. Gibson, for appellant.

      'Barrett, Wheatley, Smith & Deacon and Robert B. Gibson, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated to establish the relative priorities of a mortgage held by the Dermott State Bank on certain real property and statutory liens held by the Parker Lumber Company and the Kirby Plumbing Company for materials furnished for the erection of a building on said property. The Trial Court held that the Bank’s mortgage was subject in part to the statutory liens, and to reverse that decision the Bank prosecutes this appeal. The material facts are not in dispute, and it is not necessary to set out all of the pleadings and orders which have been abstracted.

Sometime prior to August 10,1959, H. D. Elliott, Jr. and his wife, Mildred Elliott, had obtained title to Lot 5, Block 1, A. M. Bell’s Addition to the City of Dermott. Also prior to said date the Elliotts had contracted to buy a certain building located near Lake Village with the intention of having said building moved to the above described property and then to make certain additions to and repairs on the building. In order to finance the undertaking the Elliotts, on August 10, 1957, executed a mortgage to the appellant Bank to secure their note in the sum of $4500 and for other advances that might be made by the Bank. At about the same time the Elliotts secured a commitment from the Administrator of Veterans Affairs for a loan of $9200, obviously with the intention to use this money to pay their indebtedness to the Bank and also to pay for the house, the moving of the house, and for the necessary materials and labor.

In the course of the improvement operations and before it was finally completed the Elliotts found it necessary to request additional advances from appellant Bank. Pursuant thereto the Bank agreed to furnish an additional sum (under the terms of the aforementioned mortgage) in the amount of $4700 — making a total of $9200. Apparently this amount was later extended to $5450 or a total of $9950. (Later the Elliotts sold the property to another party but in this opinion we will treat the issues as if the Elliotts owned the property at all times.)

When it came time for a final settlement it appeared that the Parker Lumber Company had an unsatisfied claim for materials furnished in the amount of $1,243.12 ; that the Kirby Plumbing Company had an unsatisfied claim for materials furnished in the amount of $785; and the Peoples Lumber Company had an unsatisfied claim for materials furnished in the amount of $479.56. Each of the above mentioned parties perfected their liens on the property in accordance with law, insofar as is shown in the brief.

The Administrator of Veterans Affairs was unwilling to accept a mortgage and advance the sum of $9200 to the Elliotts until all liens, including the Bank’s mortgage, had been satisfied. In order to achieve this the Bank, the Parker Lumber Company, and the Kirby Plumbing Company entered a written agreement. Pursuant to this agreement the Bank satisfied its mortgage and the other parties released their liens, and on May 5, 1958, the Elliotts executed their note and mortgage in the amount of $9200 to the Administrator. Thereupon the Administrator paid $9200 to the Bank for distribution. The effect of the agreement heretofore mentioned was that the lien of the Bank and the liens of the Lumber Company and the Plumbing Company would retain the same priority with respect to the $9200 that they had originally with respect to the property. The present litigation was therefore instituted for the purpose of determining said priorities. This was necessary because it was obvious that all of said claims could not be paid in full out of the funds made available by the Administrator.

The Trial Court correctly held that the Peoples Lumber Company had first lien on the property. This was true because that Company was not a party to the agreement heretofore mentioned, and so its lien remained undisturbed. The court further held that out of the $9200 the Bank was entitled first to receive the sum of $4500 (the amount in the original mortgage) and $1300 advanced by the Bank before October 1,1957, together with interest found to be due thereon. From these findings appellees have not appealed, and they are therefore affirmed.

The Court then found that (out of the balance of the $9200) the Parker Lumber Company should be paid the sum of $1,243.12 with interest; the Kirby Lumber Company should be paid the sum of $785 with interest; and the rest of the $9200 should go to the Bank. To reverse this portion of the Court’s decree appellants make one contention only:

‘ ‘ The Court erred in holding that the mortgage ... to Dermott State Bank did not contain the ‘purpose language’ as required by Section 51-605 of the Statutes of the State of Arkansas.”

The above section of the statute was construed in Ashdown Hardware Company v. Hughes, 223 Ark. 541, 267 S. W. 2d 294 and in Jack Collier East Company v. Barton, 228 Ark. 300, 307 S. W. 2d 863. In the Hughes ■ease we held that the test in determining the priority of a mortgage lien over a statutory lien was the “purpose” for which the mortgage proceeds were obtained. If to furnish money to pay for improvements on the mortgaged property the mortgage lien was prior to statutory liens for materials. In the Barton case we made it clear that the “purpose” (to make improvements) must be set forth in the mortgage itself — that is, the purpose cannot be shown by extrinsic evidence.

We- have carefully examined the mortgage given to appellant in this instance and find no language stating that the money advanced was to be used for construction <or improvements on said Lot 5.

Appellant directs our attention to certain language in the mortgage stating it covers Lot 5 together with '“all buildings thereon or to be placed thereon,” contending it is sufficient to comply with the rule heretofore announced. We do not agree. The above quoted language merely describes the security for the loan and sheds no light on the purpose for which the proceeds of the loan were to be used.

It follows therefore from what we have heretofore said that the decree of the Trial Court must be, and it is .hereby, affirmed.

Affirmed.

Robinson, J., dissents.


author: Jim Johnson, Associate Justice.

text:
    McDaniel v. Hilyard Drilling Co.
    5-2294
    343 S. W. 2d 416
    Opinion delivered February 13, 1961.
    [Rehearing denied March 20, 1961]

      McMath, Leatherman, Woods & Youngdahl, for appellant.

      Shackleford & Shackleford, for appellees.
   Jim Johnson, Associate Justice.

This is a workmen’s compensation case. It is undisputed that appellant-claimant Cleo Tommy McDaniel injured his back when he fell from a water truck while working for appellee-respondent Hilyard Drilling Company on February 7,1958.

The only controversy between the parties is the amount of permanent partial disability due appellant. Appellees contend that appellant is only entitled to 10% permanent partial disability and not 20% as sought by appellant. By agreement of counsel this case was submitted on the medical reports furnished by five physicians who had examined appellant.

The first doctor to see appellant was Dr. William J. Hutchison of Tallahassee, Florida. Dr. Hutchison’s narrative report of April 16, 1958, stated that McDaniel, according to his history, had never had a previous back injury. He further stated that at the time of the report the claimant McDaniel had a mechanically unstable back and, “I believe he will continue to have back pain if he tries to do heavy work.” Dr. Hutchison went on to say:

“He has a 20% permanent partial disability of his back for heavy work. Approximately 10% of this is due to the pre-existing deformity of his back and 10% due to the aggravation of the injury by the accident in question.”

The claimant was next examined by Dr. Charles Gr. Smith, Texarkana, Texas, on October 4, 1958, and Dr. Smith rendered a report on October 21, 1958. After setting forth the details of the accident of February 7, 1958, Dr. Smith’s report states, “He has no previous history of back complaints.” Dr. Smith went on to further state:

“It is difficult to assess exactly what value should be placed on his injury as the cause of his back symptoms in view of the possible contributing factors of his leg length discrepancy and congenital anomaly. I would •estimate his overall permanent partial disability at the present time as representing 10% of total disability.”

In his report of February 9, 1959, Dr. Smith stated in a letter to the insurance carrier:

. “The question you pose is indeed a difficult one. Obviously, the congenital anomaly of the back and the leg length discrepancy pre-existed his present complaints. According to his statement these variations from normal •caused him no symptoms and he was not conscious of either existing; however, I feel that they did contribute in that they pre-disposed him to his present complaints.

“Asked to place an exact figure on the value of the various components, I would say that this pre-existing leg length discrepancy and congenital anomaly of the back account for two or three per cent of his present disability. I think that you can understand that this is a hard position to defend since, according to the patient’s history he had no previous complaints. ’ ’

Dr. J. C. Caden of Jackson, Mississippi, examined claimant on March 3, 1959, and stated that he had a permanent partial disability of 20% to the body as a whole. Dr. Caden stated: “This is based on aggravation of a pre-existing condition since this no doubt was of congenital origin.”

Dr. Jack H. Phillips of Natchez, Mississippi, examined the claimant on April 1, 1959, and rendered a report dated April 4, 1959. Dr. Phillips in his report stated:

“This patient appears to be honest and sincere to me and apparently has been able to hold his job only because his employer is a considerate one. I feel that because of the congenital abnormality of the low back that he has had persistent symptoms and the fall would not have probably bothered him so much if he had not had this pre-existing condition. Since most of his complaint is centered about the sacrococcygeal joint it is logical to assume that he had a sprain of this joint with persistent symptoms although the x-ray does not show very much in this area. I believe that the patient’s condition is static in that he will not be benefited appreciably by further treatment and it is my impression that he had a twenty to twenty-five per cent permanent partial disability to the low back as a result of his fall.”

In a supplemental report rendered on April 7, 1959, Dr. Phillips stated as follows:

“This is a supplementary report to our April 4, 1959, report to clarify the amount of disability this patient has separating the pre-existing low back difficulty as residual of his congenital abnormality from disability incurred as a result of his injury.

“I believe that this patient has a ten per cent permanent disability as a result of his injury and his remaining fifteen per cent evaluation would be on the basis of pre-existing changes which were not caused by his injury as stated in my first report. I feel that this patient would have had little permanent disability to his low back had he not had the existing difficulty.”

At the request of the Workmen’s Compensation Referee, Dr. John M. Hundley saw the claimant on January 29, 1960. Dr. Hundley’s report on that date states: “The patient denies previous trouble with his back.” Dr. Hundley goes on to say in the portion of his report labeled ‘ ‘ opinion ’ ’:

“From the foregoing history, physical and x-ray examination, it is my opinion that this patient had a congenital anomaly of his lumbar and lumbosacral region and this defect with which he was born led him more prone to trivial gross injuries to his lower back than an individual without such an anomaly. It is quite conceivable that he did not have any symptomatology prior to the accident of February, 1958, and in all probability an individual without any pre-existing congenital anomaly such as this man has would not have had much more than soreness and muscle tightness as the result of the injury he described ... It is assumed that there was a potential 10 per cent disability of his lower back prior to the accident of February, 1958, and that this injury could not have conceivably caused more than an additional 10 per cent permanent partial disability of the body as a whole.

“ ... To give him every benefit of doubt I believe that there probably does remain 10 per cent permanent partial disability as the result of the pre-existing congenital anomaly of the lumbosacral spine and an additional 10 per cent as result of aggravation of this pre-existing condition. ’ ’

On the basis of the above mentioned medical reports, the Commission found that the claimant had a 20% disability to the body as a whole but the Commission allocated 10% of this disability to the latent congenital anomaly of the man’s back, which predisposed him W the injury occurring on February 7,1958. Compensation was thus only allowed for 10% permanent partial disability or 45 weeks. The claimant appealed to circuit court contending that the permanent partial disability should not have been reduced because of the congenital anomaly. The circuit court affirmed the Commission and the claimant now brings his appeal to this Court.

For reversal, appellant contends that: “Where a latent congenital defect is triggered by an accident, the entire resulting permanent disability is compensable.”

Appellees’ contention is that: “factually appellant’s pre-existing condition was not latent, but obviously and necessarily produced some degree of disability before the accident and continued to operate as a source of disability after the accident. They further contended before the Commission, and do so now, that any award of compensation must be limited solely to the disability produced by the injury and the prior congenital defect was not compensable.”

On the other hand, appellant argues that: “If the insurance carrier’s physicians, who make 90 per cent of the disability evaluations on claimants, are given the legal license to assign a portion of permanent disability to latent pre-existing conditions, the Workmen’s Compensation Act has been wrecked in this State as far as claimants are concerned.”

Both appellant and appellees, in order to sustain their conflicting contentions, rely principally upon the following sub-sections of Sec. 59, Yol. 2, Larson’s Workmen’s Compensation Law, pages 54 and 58:

“The principal legal question attending apportionment has been that of distinguishing prior ‘disabilities’ from prior ‘non-disabling’ defects or diseases which contribute to the end result. Nothing is better established in compensation law than the rule that when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable, and except in three states having special statutes on aggravation of disease, no attempt is made to weigh the relative contribution of the accident and the pre-existing condition to the final disability. Apportionment does not apply in such cases, nor in any case in which the prior condition was not a disability in the compensation sense ...”

‘.‘To be apportionable then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident.”

We agree with the logic of the general rule relative to apportionment as set forth above from Larson, and inasmuch as this is a case of first impression in Arkansas, we adopt it as our own.

Arkansas is not one of the states referred to by Dean Larson as “having special statutes on aggravation of disease.”

The word “latent” is defined in Black’s Law Dictionary as follows:

‘ ‘ Hidden; concealed; dormant; that does not appear upon the face of a thing . . . ”

Therefore, after carefully examining the limited record before us, we find that there is no substantial evidence to support a conclusion that the abnormality appellant may have had prior to the injury here complained of was not latent.

Accordingly, the judgment is reversed and the cause is remanded to the Circuit Court with directions to remand to the Workmen’s Compensation Commission for entry of an award for twenty percent disability.