author: Ed. F. MoFaddin, Justice.

text:
    Robert A. Parker et al v. L. V. Hendricks et al
    5-4081
    407 S. W. 2d 385
    Opinion delivered October 31, 1966

      Arnold & Hamilton, for appellant.

      Brown, Compton & Brewett, for appellee.
   Ed. F. MoFaddin, Justice.

This is another “Wet” v. “Dry” case from Ouachita County. In the present appeal the “Drys” are the appellants and the “Wets” are the appellees.

In the 1964 General Election there was submitted to the voters of Ouachita County the question of the legal sale of liquor in that County, and on the face of the returns the vote was:

For the legal sale of alcoholic beverages 6310
Against the legal sale of alcoholic beverages 5618

Tims, on the face of the returns, the “Wets” won the election. The “Drys” asked for and obtained a recount by the Election Commissioners; and the result of such recount showed the certified result to be:

For the legal sale 6364
Against the legal sale 5651

or a majority for the “Wets” of 713 votes.

The ‘ ‘ Drys ’ ’ then filed a contest in the County Court, which contest was unsuccessful; and the case was appealed to the Circuit Court, wherein there was a lengthy trial for a number of days. The “Drys” alleged many irregularities and illegalities connected with the voting and asked that all of the ballots be thrown out from each of eighteen precincts. The Circuit Court judgment was in favor of the “Wets” and the “Drys” bring this appeal, presenting only a partial record and urging only one point:

“The Lower Court erred in failing to strike all votes cast in Camden Ward 3B from the total votes cast in the local option election. ’ ’

In Camden Ward 3B the certified returns after the recount showed a total of 828 votes for legal sale and 88 votes against legal sale; or a majority for the “Wets” of 740 votes in that particular ward. As previously stated, the certified returns showed the “Wets” winning by 713 votes; so if the entire vote from Camden Ward 3B should he thrown out, then the “Drys” would win the election by 27 votes. This makes readily apparent the materiality of Camden Ward 3B; and we proceed to the evidence as to conditions surrounding the voting in that ward. _

The election was a General Election, with constitutional amendments as well as State and County officers on the ballot. Because of the large number of voters in Camden Ward 3B the election officials realized that with one set of judges and clerks the counting of the ballots would require days; so the Election Commissioners selected two sets of judges and clerks and two ballot boxes and two tables, all being located in the same room. When a voter arrived to vote and entered the room, he went to whichever of the tables had the shortest line of people waiting; the voter was checked against the list of qualified voters and allowed to vote, if qualified. The Chairman of the Board of Election Commissioners testified that this procedure for two sets of judges and clerks was done to speed the voting and to complete the counting of the ballots as soon as possible. Even with the two sets of judges and clerks, as outlined, the counting of the ballots from Camden Ward 3B was not completed until 5:00 a.m. the morning following the election.

Appellants assailed this “two box — two sets of officials” procedure as being highly irregular; and that is one of the grounds for claiming that the entire returns from Camden Ward 3B should be thrown out. In addition, the appellants claim other matters, to-wit:

(a) That while the judges and clerks at the two tables may have signed the oaths of office, nevertheless the notary or other official failed to complete the jurat of such election officials; and this is claimed as a fatal irregularity.

(b) That at least 7 named people voted twice (once at each table), and that some 58 named people voted who were not on the list of qualified voters; and this irregularity is claimed to be sufficient to throw out all the votes in Camden Ward 3B.

(c) That after the recounting of the ballots (as requested by the appellants) the ballots were not placed back in the same boxes from which they had been taken, so that it is now impossible to determine which set of election judges and clerks allowed any specific person to vote; and this is claimed to be fatal to the entire vote.

(d) That the two sets of election judges and clerks Avere not properly instructed as to their duties and did not follow the requirements of the laAV in many instances ; and this is claimed to be fatal to all of the votes cast in Camden Ward 3B.

Some, if not all, of the County election officials and judges and clerks in Camden Ward 3B testified in the Circuit Court case, and such testimony is before us. We are impressed with the integrity that these witnesses demonstrated. They did not profess to know all about the election laws in Arkansas (who does?); but they honestly desired to hold a fair and impartial election. There is no showing’ that any illegal or irregular votes were cast except to the extent of not to exceed 65 specifically named and challenged voters, and this number Avould not change the result of the election. There is no fraud shown to have been committed in the Camden Ward 3B election. With becoming candor the appellants say:

“... no contention is here made of deliberate fraud on the part of any person serving in the capacity of an election official in Ward 3B Camden. So far as the record is here presented, the multitude of irregularities which unquestionably occurred, were the result of three failures, which are:
‘ ‘ 1. The failure by election officials to properly instruct the persons selected by them to serve as election officials.
“2. The failure of election officials to follow the procedure prescribed in order to legally conduct an election in Ward 3B.
“3. The failure of the precinct officials to understand and perform their duties in the manner prescribed by law. ’ ’

Even after making the above quoted concession, appellants insist that we should throw out all the ballots in Ward 3B Camden; and to sustain such contention appellants cite these cases from other jurisdictions: Tebbe v. Smith (Calif.), 41 p. 454; Hatfield v. Scaggs (W. Va.), 133 S. E. 109; Kerrigan v. Vetsch (Minn.), 71 N. W. 2d 652; State of Iowa v. Community School Dist. (Iowa), 78 N. W. 2d 86; and Johnson v. Hall (Ky.), 121 S. W. 2d 935.

It would serve no useful purpose to state the facts and the holdings in each of these cited cases from other jurisdictions because we have Arkansas cases which completely answer the appellants’ contentions. In Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257, we said:

“All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.”

So if we struck out the maximum of 65 votes particularly and specifically challenged in Camden Ward 3B, we would still know the result; and the result of this election would not be changed by striking out the said 65 votes.

Furthermore, we have repeatedly stated the quantum of evidence that must be shown in order to justify a court in throwing out all the ballots in an election or in a precinct. The case of Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910, involved a “Wet” v. “Dry” election contest from Bradley County, and the contention was there urged that all of the votes should he thrown out because of irregularity; and in disposing of that contention we quoted from Judge Eakin’s language in the case of Patton v. Coates, 41 Ark. 111, as to what must be shown before all the ballots in a precinct will be thrown out:

“ ‘The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences ; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, .... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.’ ”

In Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill, speaking for this Court, said:

“It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the courts to see that every legal vote cast is counted where the possibility exists.”

In the case at bar we are convinced that the Election Commissioners and election officials in Camden Ward 3B honestly and conscientiously tried, to the best of their abilities, to see that a fair and honest election was held. No fraud was shown or claimed. It would be outrageous to throw out all the votes in Camden Ward 3B under the facts in this case. We agree with the Circuit Court that we do not condone irregularities or illegalities; but we do say that there is substantial evidence to sustain the findings of the Circuit Court to the effect that all of the specific items of irregularities and illegalities, when totalled, were not sufficient to void the entire election in Camden Ward 3B.

Therefore we affirm the judgment of the Circuit Court.

       Lin Parker v. Rowan, 239 Ark. 929 S. W. 2d 338, we listed in some detail some of the Ouachita County litigation on this issue.

      This was in accordance with Initiated Act No. 1 of 1942, as found in Ark. Stat. Ann. § 48-801 et seq. (Repl. 1964.)

      The words, “Thrown out,” are frequently used in regard to election contests. Funk & Wagnalls New Standard Dictionary of the English Language says of “throw out,” “. . . to cast out or aside; reject; as to throw out dishonest items . . .” Webster’s International Dictionary, 2nd edition, says of “throw out,” “. . . to east out, to reject, or discard. . .”

      Eaeh set of judges and clerks counted and certified the votes in the box that such judges and clerks had been using at their table.

       In a footnote to Baker v. Hedrick, supra, we cited a number of cases which have followed Patton v. Coates, and some of these involved the vote in one precinct, as distinct from the entire election.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Burl Garroute v. State of Arkansas
    5217
    408 S. W. 2d 485
    Opinion delivered October 31, 1966
    [Rehearing denied December 12, 1966.]

      Carlos B. Hill and Sam Montgomery, for appellant.

      Bruce Bennett, Attorney General; Richard B. Adkisson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was found guilty of having passed a worthless check fur $50.55, with intent to defraud. Ark. Stat. Ann. § 67-720 (Repl. 1966). The court, sitting without a jury, sentenced him to imprisonment for two years, this being a second offense.

For reversal appellant contends that the existence of any intention to defraud is completely disproved by the fact that he made complete restitution before he was arrested under the information filed against him. This, however, is not the law. If the original transaction was criminal, the fact that restitution was made is not in itself a defense. Bruce v. State, 223 Ark. 357, 265 S. W. 2d 956 (1954). Thus the question for the trial court was whether the accused had the requisite dishonest intent in the first instance.

Upon this issue there is substantial evidence to support the judgment of conviction. Garroute issued the check on August 3, 1964, in the purchase of merchandis'd. It was returned, for insufficient funds. The merchant made repeated efforts to collect the money. Garroute, who was frequently out of town, sent, through his wife, two ten-dollar payments upon the debt, one in February and the other in April. It was not until after the information was filed in November, 1965, that full restitution was finally made. Upon this proof the court was justified in concluding that Garroute knew when he issued the check that it would not be honored. Unlike the accused in Edens v. State, 235 Ark. 284, 357 S. W. 2d 641 (1962), Garroute obtained full value in return for the check. That fact distinguishes the two cases.

Affirmed.


author: Paul Ward, Justice.

text:
    Westinghouse Credit Corp. v. First Nat'l Bank of Green Forest, et al
    5-3905
    407 S. W. 2d 388
    Opinion delivered October 31, 1966

      Warren & Bullion, for appellant.

      Warner, Warner, Bagon & Smith and J. E. Simpson and Ted Coxey, for appellee.
   Paul Ward, Justice.

One of the two issues on this appeal is whether appellant was indebted to appellee in the amount of $10,087.18. The trial court, sitting as a jury, found, from the testimony, in favor of appellee, and this appeal follows.

In order to understand how the alleged indebtedness arose it is necessary to set out, in some detail, certain background facts.

The parties involved. Appellant, Westinghouse Credit Corporation (hereafter called “WCC”) is a foreign corporation (authorized to do business in this State) and is a subsidiary of the Westinghouse Corporation. Appellant is engaged in helping finance appliance dealers by purchasing their retail contracts. It operates through a main office in Dallas and a district office in Little Rock with Paul Moore as manager of the latter. Appellant employs agents to solicit business from appliance dealers in the State and to assist in other ways. One of these agents is J. P. Erion, Jr.

William T. Daniels, d/b/a T. Y. & Appliance Supermarket (called “Daniels”) is located at Berryville, Arkansas, with a store at Rogers. He retails appliances- — ■ often on credit.

Appellee is the First National Bank of Green Forest, Arkansas (called “bank”). Its president is Ray Anderson.

Facts. On January 14, 1964 Daniels and Erion, Jr. drew a draft on WCC, payable to Daniels for the sum of $4,150.65. A similar draft was drawn two days later for the sum of $5,936.53. The drafts were signed as follows.

“T. V. & Appliance Super Mkt.
(dealer)
(per) William T. Daniels
(official title) Owner
J. P. Erion, Jr.
Westinghouse Credit.”

Both drafts were presented to and cashed by appelleebank, and the proceeds placed to the credit of Daniels. The face of the draft, which was printed on a large envelope, bore the following statement: “In consideration of your immediate payment of this draft, covering your purchase of the transaction represented by the papers contained herein . . . .”

When the drafts were presented by appellee to WCC payment was refused, and then appellee filed suit in circuit court against WCC and Daniels to recover the money expended. After hearing all the testimony on the issue presented the trial court (sitting as a jury) found in favor of appellee.

One. We have concluded that the judgment appealed from must be affirmed. It is well established by many decisions of this Court that the decision of the trial judge (as here) has the same force and effect as the verdict of a jury and must be affirmed if supported by substantial evidence.

The evidence shows that on many previous occasions similar drafts had been honored by WCC; that appellee-bank had treated them as cash items for which Daniels had been given immediate credit. There was testimony that WCC’s agent had instructed the bank to treat similar drafts as cash items. This testimony was objected to by appellant on the ground that it was an attempt to "vary the terms of a written instrument.” We do not agree. The testimony referred to above tended not to vary but explain the meaning of the draft. In the case of Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S. W. 2d 729, there appears this statement:

"While parol evidence is not admissible to vary the terms of a written contract, it is admissible to show what the parties intended to express by the language adopted. ’ ’

The rule thus stated has never been overruled. Also, there is testimony in the record from which the trial court could have found that Erion, Jr. was an agent of WCC clothed with authority to approve contract purchases and also drafts drawn in payment thereof.

Two. WCC not only filed an answer to the bank’s complaint, as set out above, but it filed a counter-claim against the bank and also filed a cross-complaint against the hank and its president — Ray Anderson. In both instances WOC alleged, in substance, that the bank and its president, “with intent to deceive and defraud,” falsely and fraudulently represented that Daniels “was in good credit and safe to be trusted.” It was further alleged that the bank and Anderson well knew at the time that Daniels’ business was highly unsound and not in good credit — that he was not worth anything over and above his debts and liabilities, and that they knew of prior fraudulent dealings on the part of Daniels. It was further alleged that WCC relied upon said misrepresentations and, as a result thereof, it granted credit to Daniels in the sum of $256,000 (now due); that of the above amount $150,000 worth of sales contracts were fraudulently issued by Daniels, and; that Daniels is now totally insolvent.

After testimony was introduced tending to support the above allegations, appellees moved for a summary judgment which was granted by the trial court. We think this was error. The general rule, well established by many decisions of this Court, is that a motion for summary judgment will not lie where there exists a genuine issue of fact. See: Kealy v. Lumbermen’s Mutual Ins. Co., 239 Ark. 766, 394 S. W. 2d 629, and Jones v. Halliburton Co., 240 Ark. 919, 403 S. W. 2d 51. We feel that it would serve no useful purpose to discuss at length the many authorities cited by both sides or the somewhat voluminous testimony offered in evidence. We think if suffices to say we do find in the record several genuine issues of fact which, we think should be passed on by a jury.

We are also of the opinion that if, on a trial, appellant can prove all its allegations above mentioned, then a cause of action would lie. See: Gregory v. Consolidated Utilities, Inc., 186 Ark. 406, 53 S. W. 2d 854, and Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256.

In view of what we have heretofore said it follows that the hank’s judgment against WCC must be affirmed. Likewise, the judgment of the trial court- dismissing WCC’s alleged cause of action must be reversed. It is so ordered, and the latter cause is remanded for further proceedings consistent with this opinion.

It has been urged that since this is a circuit court action we must remand both causes of action for a complete new trial. We do not agree. We have the power to so divide the two causes since we are not dividing a jury verdict. See: Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S. W. 2d 430; Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126, and; Callaway v. Cherry, 229 Ark. 297, 314 S. W. 2d 506.


author: Paul Ward, Justice. G-uy Amsler, Justice,

text:
    M. L. Bebout v. Eva Bebout
    5-3980
    408 S.W. 2d 480
    Opinion delivered October 31, 1966
    [Rehearing denied December 5, 1966.]

      W. Q. Ball, for appellant.

      Putman, Davis & Bassett, for appellee.
   Paul Ward, Justice.

This litigation, relating to a division of property between man and wife, arose out of the factual situation presently summarized. Four separate stages of legal procedure between these parties preceded this appeal.

First. On May 16, 1961 the wife filed a suit for separate maintenance; the husband, on cross-complaint, asked for a divorce and one-half of all real and personal property, and then the wife asked for a divorce and a share of the property. On July 9, 1962 the trial court found the wife should have the homestead consisting of forty acres (held by the entirety) and also should have a note (being the proceeds from the sale of 148.46 acres of land) which was held by the entirety; also the wife was granted a divorce.

Second. The above mentioned decree was appealed to this Court, and on March 2, 1964, we reversed the trial court, holding there was no corroborating evidence to sustain the divorce. We also said: “. . . the entire decree must fall.” See: Bebout v. Bebout, 237 Ark. 735, 375 S. W. 2d 798.

Third. On June 28, 1962 the husband filed a complaint in a Nevada court, asking for a divorce. The divorce was granted on July 23, 1962 — just two weeks after the wife was granted a divorce in this State (as pointed out previously). It is noted here that on the same day the husband filed his complaint in Nevada he also filed a pleading asking for a divorce in Arkansas.

Fourth. The suit from which comes this appeal was filed by the husband (appellant herein) on April 22, 1964. In the complaint appellant alleged that he and his wife (appellee herein) were the owners by the entirety of the real and personal property referred to previously. He asked that said property be partitioned equally between them. Appellee answered, alleging the invalidity of the Nevada divorce, and that she was entitled to all the property. On January 11, 1965 the trial court found: (a) the parties previously agreed that appellee was the owner of forty acres of land and that by “reason of said agreement” appellee is the owner in fee simple of said land; The court also found that the parties “are owners as tenants by the entirety” of the promissory note; (b) The court was not required to give “full faith and credit” to the Nevada divorce decree and “the parties hereto are still husband and wife to each other despite the Nevada decree,” and; (c) appellant’s petition for partition should be dismissed.

From the decree of dismissal appellant now prosecutes this appeal, contending the trial court erred; One, in refusing to give full faith and credit to the Nevada decree; Two, in holding the Nevada decree was obtained by fraud; Three, in holding appellant was not domiciled in Nevada, and; in “awarding to the appellee the real estate.”

Under our view of the case it is necessary to discuss only two questions: One, was appellant domiciled in Nevada when that court granted him a divorce, and Two, did the trial court err in awarding the real estate to appellee.

One. We have concluded that the trial court was correct in holding appellant was not domiciled in Nevada. Appellant’s own testimony was to the effect that he left his home in Madison County (Arkansas) and went to Nevada, knowing that the divorce suit was pending in this State; he knew when he filed for a divorce in Nevada that he had, on that same day, asked the court here for a divorce; he admitted he left here on a vacation, that he did not work in Nevada, that he rented a motel room while there, that he had read about the “quickie” divorces in Nevada; he admits that shortly after the Nevada decree he returned to his home at Huntsville in Madison County, and that he later bought real estate in that county; he admitted he left for Nevada when he learned it would take over a year to get a divorce here. It is not disputed that appellee did not, in person or by an attorney, appear in the Nevada conrt or otherwise contest the divorce action.

Under the above factual situation we think the trial court was fully justified in holding appellant was not at any time domiciled in Nevada even though he did reside there a few weeks. The word “domicile,” according to Black’s Law Dictionary, means “That place where a man has his true, fixed, and permanent home . . .” Since appellant was not domiciled in Nevada when he secured the divorce, the decree of that court was not entitled to full faith and credit in this State. See: Williams v. State of North Carolina, 325 U. S. 226. See also: Cooper v. Cooper, 225 Ark. 626. 294 S. W. 2d 617.

Two. We have concluded it was error for the trial court to give the real estate to appellee. It is not disputed that this property constituted an estate by the entirety. In the case of Yancey v. Yancey, 234 Ark. 1046, 356 S. W. 2d 649, this Court said:

“It is necessary that this decree be reversed, because the court exceeded its authority in directing appellant to give appellee a quit-claim deed to his interest in the home held as an estate by the entirety. The Chancellor was evidently undertaking to arrive at an equitable solution relative to property rights in making his findings, and we find nothing erroneous purely from the standpoint of equity; however, we have stated on several occasions that in event of a divorce, property held as an estate by the entirety shall be treated as a tenancy in common. The conrt may then do one of two things; it may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided.”

The Yancey decision was based on Act 340 of 1947 — Ark. Stat. Ann. § 34-1215 (Repl. 1962) — which reads:

“Dissolution of estates by the entirety or survivor- ship. Courts of Equity, designated Chancery Courts within the State of Arkansas, shall have the power to dissolve estates by the entirety or survivorship, in real or personal property, upon the rendition of a final decree of divorcement, and in the division and partition of said property, so held by said parties, shall treat the parties as tenants in common. ’ ’

The intent and scope of the Act is indicated by certain language in the emergency clause which recognizes that courts of equity in this State have “lacked the power heretofore, upon dissolution of the marital status, to dissolve estates in property created by the marital status.”

Thus this, under the statute, limited power of chancery courts to dissolve estates by the entirety is confined to cases involving a divorce — no divorce is involved here. This limitation has been repeatedly recognized and upheld by this Court. See: McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911; Poskey v. Poskey, 228 Ark. 1, 305 S. W. 2d 326, and; Childers v. Childers, 229 Ark. 11, 313 S. W. 2d 75.

Apart from its statutory power, a chancery court unquestionably is authorized to grant specific performance of an oral contract for the sale of land where there is sufficient part performance. It is necessary, however, that both the making of the contract and its performance be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S. W. 2d 389. Here the proof does not meet that stndard. The appellee did not plead the existence of a contract; she merely asserted as a conclusion that she owned the land. Her testimony was to the effect that the appellant agreed that she could have the property if she made the final payment on the purchase price. The appellant did not corroborate her statement. He testified that he thought that she was to receive the property (in the divorce case) and that “if she was going to get it, let her pay for it.” There were no other witnesses to the transaction. We are unable to say that the making and performance of the asserted oral agreement were established by that high standard of proof that the law requires in such a case.

It is pointed out that the trial court did not award the note (held by the entirety by the parties) to appellee. Upon remand the trial court will have the right (based on the-evidence) to determine how much, if any, maintenance shall be awarded to appellee, and to determine whether or not to award appellee possession of (not title to) the homestead.

The cause is therefore affirmed in part and reversed in part, and it is remanded for further action consistent with this opinion.

McFaddin, Amsler and Bland, JJ., dissent in part.

G-uy Amsler, Justice,

dissenting. I respectfully dissent from that part of the majority opinion which reverses the chancery decree.

In the first litigation between these parties, originating back in 1961 (they had already separated and he had moved out of the house), Mr. Bebout assured the court that he had given his interest in the home place to his wife on condition that she make the final payments thereon. At a hearing on February 5, 1962, he testified:

“Q. You let her make the payment then with the understanding that she was to get title to the place, is that it?
A. Right
Q. Then if that was your understanding, if she did make the payment then she was entitled to the title because you were going to let it go back? You didn’t care about it, is that right?
A. That’s right.”

See Bebout v. Bebout, 237 Ark. 735, 375 S. W. 2d 798, footnote page 736 (cited in majority opinion).

Subsequent to the 1962 trial, Mr. Bebout took off to Reno, Nevada, procured “a quickie divorce” (which this court is unwilling to recognize) and then drifted around in Ohio, Texas and perhaps other places for sometime before returning to Madison County. Apparently during his travels or after he got back to Madison County he changed his mind about the place belonging to his wife and filed suit for partition. The chancellor refused partition on the grounds that he (Bebout) had already given the property to his wife; that she was in possession and made the payments in accordance with the agreement they had and it belonged to her.

The majority concedes that equity has a right to grant specific performance of an oral agreement for the conveyance of land if there has been part performance, but say that both the making of the contract and its performance must be proved by clear and convincing evidence. Apparently the able and discerning chancellor concluded that the sworn testimony of both parties to the oral agreement that she should have the land, strengthened by possession and payment by the wife, was about as clear and convincing evidence as a court could expect, so he accepted it.

Nearly three years later appellant testified that he didn’t remember if he gave the answers quoted above and in the same hearing swore that what he told her was “she could have either place.” The trial judge heard the witness on both occasions and I think correctly evaluated the testimony. Appellee (the wife) testified that her husband agreed that the place was hers if she would pay it out; which she did. There is no contention that the court reporter did not correctly report the testimony of appellant (husband) in the original hearing.

The majority says that “the appellee did not plead the existence of a contract; she merely asserted as a conclusion that she owned the land.” In her answer to appellant’s present partition suit she denied that he was entitled to have the land partitioned and she claimed ownership of it. If the husband was not informed concerning the basis for her claim of title (which he was) it would have been a perfectly simple matter for his attorney to file a motion to make more definite and certain or to have availed himself of other procedures for obtaining information which would have enabled him to have presented his defense. Prayer in her answer was “wherefore, premises considered, defendant prays that the title to the lands described in the partition be vested in her ...”

It is my feeling that neither Yancy v. Yancy (and other cases cited in the majority opinion) nor the statute dealing with the dissolution of an estate by the entirety or survivorship has anything at all to do with this law suit. The statute and the cases relate only to a situation where the chancellor grants a divorce and the parties are unable to agree on a division of property held by the entireties. We have no such condition here.

The exact point in issue here was passed on by us in Ryan v. Roop, 214 Ark. 699, 217 S. W. 2d 916. Ryan and his wife (who later married Roop) owned an improved lot (by the entireties) in Pine Bluff, Arkansas. In 1943 Ryan filed suit for divorce in Craighead County, Arkansas. There was a property settlement and on March 27, 1944, Ryan quitclaimed his interest in the aforementioned lot to his wife and thereafter on April 19, 1944, they were divorced.

In 1948 Ryan’s former wife, Cordie Roop, instituted suit in the Jefferson County Chancery Court to quiet and confirm her title to the lot in question as against Ryan, her former husband. The lower court granted the relief sought and on appeal was affirmed.

The late, highly regarded, Justice Minor W. Millwee expressed the views of this court as follows:

‘ ‘ The only question presented is whether a husband can convey directly to the wife his interest in an estate held by them as tenants by the entirety.”

Then after referring to Act 86 of 1935, Ark. Stat. Ann. § 50-413 (1947) (conveyances between spouses) Justice Millwee wrote:

“It is held generally that a husband may by direct conveyance transfer to his wife his interest in an estate by the entirety. This rule has been followed even in jurisdictions where neither spouse can convey any interest in such an estate without the consent of the other, on the theory that such consent is to be implied from the grantee spouse’s acceptance of the conveyance. It is likewise held that a husband may convey his interest in the entirety estate to his wife under statutes authorizing conveyances between the spouses. 41 'C.J.S., Husband and "Wife, p. 607 ; 26 Am. Jur., Husband and Wife, § 257. The former rule in this state that a conveyance directly from husband to wife conveyed only an equitable title ordinarily necessitated' use of the common law device of a conveyance through a. third person. This rule was changed by the 1935 act which is all inclusive in its terms and authorizes conveyances between spouses of any interest in real property. The deed of March 27, 1944, divested appellant of any further title or interest in the lot in question. ’ ’

Under our system of jurisprudence a great deal of responsibility rests on a chancellor in determining the facts and we have said that unless we-find his conclusions to be contrary to a preponderance of the evidence, we will not disturb Ms findings. The majority is doing the trial court a great disservice when it reverses a decree in which there is only a “smidgen of proof” to justify such reversal and an abundance of “clear and convincing proof” to sustain what the chancellor did. I therefore dissent.

I am authorized to say that Justices McFaddin and Bland join in this dissent.


author: Osro Cobb, Justice.

text:
    James Dean Walker v. State of Arkansas
    5186
    408 S. W. 2d 905
    Opinion delivered October 31, 1966
    [Rehearing denied December 12, 1966.]

      Howell, Price & Worsham, for appellant.

      Bruce Bennett, Attorney General; Jerry W. Faubus, Asst. Atty. Gen., for appellee.
   Osro Cobb, Justice.

Appellant prosecutes this appeal from his conviction of the offense of murder in the first degree. The victim was Jerral Vaughn of the North Little Rock Police Department. This is the second time that appellant has been tried and convicted of the particular exime. In Walker v. State, 239 Ark. 172, 388 S. W. 2d (1965), we reversed his previous conviction and remanded the case for a new trial.

INTRODUCTORY FACTS:

At about 2:30 a.m. oxi the 16th day of Apxil, 1963, the North Little Rock Police Department was under an alert to stop and investigate a cream colored Oldsmobile. Such a ear was first observed by Officer Gene Barrentine, who “tailed” the vehicle as it was proceeding through what is known as Rose City toward England. When Officer Barrentine learned through his radio communications that Officer Vaughn was directly behind him and aware of the situation, he started flashing his red dome light and the cream colored Oldsmobile pulled over and stopped. Officer Barrentine stopped his car directly behind the suspect car. Vaughn stopped his car behind and to the left side of the Barrentine car. The driver of the Oldsmobile, later identified as Freeman Kumpe, got out and came around to the left rear of the Oldsmobile and met Barrentine. While Barrentine was beginning a search of Kumpe, Officer Vaughn went around the right rear of the Oldsmobile, ostensibly to check the other passengers in the car. Almost in the instant that Vaughn disappeared around the right rear of the Oldsmobile, a fusillade of gunfire erupted, the autopsy report subsequently reflecting that Officer Vaughn was killed by a bullet entering his body at the front side of his chest in the heart area.

Whexi Officer Barrentine saw the body of his fellow-officer fall to the ground, he started shooting through the Oldsmobile in the general direction of the right front door. Photographic exhibits introduced in evidence show that two of such shots were fired into the body of the Oldsmobile at a point slightly below the back windshield. The back windshield was completely shot ont and after the shooting appellant was found in a semi-conscions condition lying on the ground upon an empty .38 Smith & Wesson revolver. Appellant was hospitalized and survived the shooting, it being found that he had been shot five times in the course of the exchange of fire. During the excitement of the gunfire, Kumpe temporarily escaped but was captured in a matter of minutes. Officer Barrentine shot twice at Kumpe but missed.

Linda Ford had been riding in the front seat of the Oldsmobile between Kumpe, the driver, and appellant, who was seated at the right side. During the incident, she jumped from the car and ran back toward the police cars for cover. She testified that appellant had a gun in his hand when he opened the right door of the Oldsmobile to meet Officer Vaughn and that appellant started shooting, being the first to fire. Appellant testified briefly in this case but at no time did he attempt to place a gun in the hands of Linda Ford. Since Kumpe was out of the car and unarmed; Linda Ford had no gun and Officer Vaughn was slain by a bullet fired into his body as he faced appellant, the physical facts leave little, if any, doubt as to the fatal bullet coming from a gun fired by appellant.

Appellant’s court-appointed attorney began intensive labors in the case in April of 1965. The case was not reached for trial until late December of that year. Lengthy hearings were conducted by the court on various motions by appellant during the months of preparation for the trial. The first motion of appellant was that he be returned from the State Penitentiary to the Pulaski County Jail for convenience of his counsel in conferring with him and preparing for his trial. The court, on the same day of the motion, April 5, 1965, entered the requested order. Appellant therefore was permitted to remain in jail instead of the penitentiary for some seven months.

The second motion on behalf of appellant was for a sweeping order requiring the State to submit to appellant’s attorneys each and all of its tangible objects which were to be used in evidence, for copying or photographing, and including ballistics tests reports on the guns of Officers Vaughn and Barrentine and upon the .38 caliber Smith & Wesson revolver alleged to have belonged to appellant; fingerprint reports, if any, of appellant; autopsy report of Dr. Leo Davenport; the coroner’s report as to Officer Vaughn; parrafin test reports as to appellant, and all photographs of police vehicles at the scene. The motion continued by requesting that the three guns involved in the gunfire be turned over to appellant’s attorneys for private and independent examination, the same request being made as to the bullets recovered from the body of appellant and the empty shells of the gun alleged to have belonged to appellant. Following hearing, the court granted appellant all of the relief sought in the motion.

When the defense had completed its pxivate examination of tangible, documentary and photographic evidence relied upon by the State, the prosecution moved that appellant be required to make available the results of the ballistics tests on the three guns involved. The court granted this motion, directing appellant, by his attorneys, to file with the clerk as part of the record of proceedings the ballistics report of Stanton 0. Berg, Firearms Examiner of Minneapolis, Minnesota. Appellant objected to this order but nevertheless complied therewith. We note here that the order of the court did not relate to the introduction of the ballistics report in evidence, but solely to. its availability to the presecution as a part of the record.

Appellant moved for a change of venue, alleging that he could not receive a fair and impartial trial in Pulaski County.- The motion involved the testimony and affidavits of some two hundred persons on each side of this contention. A separate volume of transcript is devoted to this motion for change of venue.alone. The motion for change of venue was heard and denied, and thereafter appellant filed a motion to disqualify the trial court because of alleged personal prejudice and bias toward the accused. Here again, a lengthy formal hearing was conducted and the motion was denied.

The next motion filed on behalf of appellant was to quash the jury panel. A formal hearing was held, including the taking of testimony of all three jury commissioners, and the motion was denied. We note that no question is raised on this appeal relating to the qualification of any juror selected to try the case.

The case was finally reached for trial in December, 1965. The trial proper took five days. At the outset of the trial all witnesses were individually called to be sworn and the rule was placed upon them. It is significant that Linda Ford and Mary Louise Roberts did not appear to be sworn.

Early in the trial of the case, the court permitted the State, over the objection of appellant, to read into evidence the testimony of Linda Ford and Maiy Louise Roberts as given on direct and cross examination at appellant’s first trial. Prior to admitting this evidence, the court required the State to introduce proof of its diligent efforts to locate and serve subpoenas upon the witnesses to compel their attendance and on some three occasions during this proof, the court commented that he much preferred to have the witnesses personally present if possible. The court found that the witnesses were unavailable through no fault of the prosecution and admitted the testimony under the provisions of Ark. Stat. Ann. § 28-713 (Repl. 1962).

At the conclusion of the first trial, appellant was found guilty and the jury imposed the death penalty upon him. At the end of this trial, appellant was again found guilty of murder in the first degree but the jury spared his life and fixed his sentence at life imprisonment.

The case reaches us on appeal involving a voluminous record, the printed volume of argument on behalf of appellant comprising 263 pages. Appellant requested, and was granted, the privilege of arguing the case orally prior to submission.

On appeal appellant urges twelve points:

1. Suppression of evidence.
2. The order requiring defendant’s counsel to file the report of its ballistics expert.
3. Denial of motion to disqualify the trial court.
4. Prejudicial comments of the court during the conduct of the trial.
5. Prejudicial comments of the court to the jury.
6. Permitting the State to read into evidence the transcript of previous testimony of Linda Ford and Mary Louise Roberts.
7. Denying defendant’s motion to quash the regular, alternate and special jury panels.
8. Refusal of the court to admit defendant’s hospital records into evidence.
9. Denial of defendant’s petition for a change of venue.
10. Contentions as to error in instructions given or refused by the court.
11. Refusal of the court to instruct the jury on manslaughter.
12. Refusal of the court to reduce the charge against appellant from first degree murder to second degree murder.

We discuss appellant’s points in the order in which they have been enumerated.

Point No. 1 — Suppression of evidence.

Appellant complains that evidence was introduced by the State in the second trial which was available but not used and offered in the first trial. Our review is solely limited to what transpired in the second trial. In the second trial, the State handed over to appellant all of its tangible evidence for examination, photographs, etc. The record simply does not support the contention by appellant that the State suppressed any evidence.

We conclude therefore that this contention is without merit.

Point No. 2 — The order requiring defendant’s counsel to file the report of its ballistics report.

Appellant here attempts to argue that after being permitted by order of the court to have a private examination of the guns, bullets and shells by a firearms expert of his own choice, he was entitled to suppress the report received as to the results of such tests so that same could not be made a part of the record for the information of the State. The court ordered the ballistics report filed as a part of the proceedings, but not as evidence. This was proper in every respect as the report was clearly admissible in evidence if introduced by the maker thereof.

Ark. Stat. Ann. § 43-2010 (Repl. 1964) constitutes a part of our criminal procedures and it provides:

“The court, on motion of either party, may, by its order and process, compel the production of any written document, or any other thing which may be necessary or proper to be produced or exhibited as evidence on trial, and may punish a disobedience of its orders or process as in case of witness refusing- to testify.”

We therefore find no merit in appellant’s contention under Point No. 2.

Point No. 3 — Denial of motion to disqualify the trial court.

Appellant has abstracted the testimony of Reverend Ray Branscum, who testified in support of the motion to disqualify the court for bias and prejudice toward the accused, as follows:

“I am pastor of the Markham Street Baptist Church. Several months ago I was present in Judge Kirby’s office and heard him make certain statements in reference to this case. Rev. Guy Wilson, Mr. Bryant and myself came to the judge’s office and made a request for permission for the Sheriff’s office to bring the defendant out to my church where the ordinance of baptism might be observed. Judge Kirby said he didn’t have any confidence in James’ profession and that he had killed a man but he was going to grant the request. He told the deputy sheriff that he wanted him heavily guarded and if James made a move, to shoot him down because he didn’t want him brought back to him because he intended to burn the s.o.b. anyway. ’ ’

Reverend Guy S. Wilson testified substantially to the same facts as set forth by Reverend Branscum.

The court took a calculated risk in order to accommodate the ministers and appellant.

At the conclusion of the hearing, the court overruled the motion to disqualify, stating:

“I think I can give him a fair trial, and I have nothing to do with punishing him, certainly. It is up to the jury to do that. If I don’t give him a fair trial, the Supreme Court can reverse me. They have reversed me once before when I thought I was right. I don’t think my personal feelings have anything to do with it one way or the other. I did make the statement that if he ran to shoot him. I remember that. I don’t remember saying that I was going to burn him, because that’s silly; I can’t burn him.”

The fact that a trial judge may have, or develop during a trial, a personal opinion as to the merits of the case does not make the trial court so biased and prejudiced as to require his disqualification in further proceedings. The mischief occurs when the trial court communicates to the jury by word or deed a personal bias, prejudice or animus toward the accused, causing the accused to be denied a fair and impartial trial. Of course, statements made by a trial court long before a jury panel is selected, and in no way communicated to the trial jury, would not constitute any such bias or prejudice in the conduct of the trial. Since the court actually proceeded to try this case, we review the record in the light of what actually transpired.

The trial court gave counsel for appellant some seven months to prepare for this case. The trial court granted appellant’s motion to take him from the State Penitentiary and place him in the Pulaski County Jail, for the convenience of his counsel in preparing appellant’s defense; and the court promptly granted appellant’s sweeping motion for production and private examination of all the tangible objects which were to be introduced by the State in evidence. When the ministers called upon the court requesting that the accused, a man previously convicted of murder in the first degree, be released from jail to go to a local church for baptism, the court acceded to the request but instructed the deputy sheriff to shoot appellant if he attempted to escape. Moreover, at the conclusion of his second trial, appellant, instead of receiving the death sentence upon conviction, was given a sentence of life imprisonment.

We have concluded that the trial court acted properly, and even generously, toward appellant in the course of the second trial and that the court exhibited no personal bias or prejudice to the jury. A jury inflamed against the accused would hardly have convicted him of murder in the first degree and then spared his life by imposing a sentence of life imprisonment.

It is an established rule of law that while a trial judge may have an opinion as to the merits of the case on trial, this does not make him biased or prejudiced as to the conduct of the trial. When challenged for bias and prejudice, it is for the trial court to search his conscience and decide whether to recuse himself from the case. We find from the record in this case that the trial court conducted the trial in an exemplary manner and without any bias or prejudice toward the accused.

In an early Arkansas case, Jones v. State, 61 Ark. 88 32 S. W. 81 (1895), we said:

‘ ‘ * * * If having formed an opinion as to the guilt or innocence of a defendant on trial in a criminal case was a disqualification of a judge presiding at the trial, it would often be a difficult matter to find a judge that would not be disqualified. * * *”

See also Reaves and Neal v. State, 229 Ark. 453, 316 S. W. 2d 824 (Repl. 1958); State v. Flynn, 31 Ark. 35 (1896), and 48 O.J.S., Judges, % 82 at p. 1,061, from which we quote:

< < * * * a judge is not disqualified by having known defendant in a criminal trial or by having sat in trials of defendant on previous occasions. The fact that a judge is prejudiced against the commission of a crime does not disqualify him from presiding at the trial thereof. He is not necessarily disqualified because he has formed an opinion as to the legal questions involved in the case or as to the guilt or innocence of an accused who is brought before him; nor is he disqualified because of unfavorable comments or an expression of opinion as to the guilt or innocence of such accused. * #

The language quoted above applies only to those opinions of the court expressed out of the presence of the jury trying the case, which is the exact situation in relation to the comments of the trial court in this case.

Our trial judges are forbidden from commenting on the evidence to the jury. § 23, Article VII, Constitution of Arkansas (1874).

We therefore find no merit in appellant’s contentions under Point No. 3.

Point No. 4 — Prejudicial comments of the court during conduct of the trial.

We have examined the record in this case as to all comments of the trial court made in the presence of the jury and we find no prejudicial error in any of said comments.

We therefore find no merit in appellant’s contentions under Point No. 4.

Point No. 5 — Prejudicial comments of the court to the jury, prior to trial.

When the jury panel was sworn to answer questions put to them as to their qualifications, the court made the following comments:

“By way of explanation, I might say to the jury that this is the second time this case has been tried, or will be the second time. Mr. Walker was tried once and convicted and the Supreme Court reversed it and sent it back here for retrial.”

The court granted counsel for appellant wide latitude throughout the voir dire examination of the jurors. This examination continued for more than one day. On the second day, two additional jurors reported and for their benefit the court made the following explanatory statement:

“I might mention, by way of explanation, that Mr. Walker was tried previously, convicted, and the Supreme Court reversed the case and sent it back for a new trial.”

Counsel for appellant in the course of this trial cross-examined the prosecuting witnesses at great length upon the testimony they had given in the first trial of appellant, in an effort to impeach their testimony. Throughout the taking of evidence, the fact that appellant had been tried before on the same charge was kept before the jury by counsel for appellant. Appellant is, therefore, in no position to complain because of the explanatory statements of fact made by the court.

Furthermore, when the trial court explained to the jury panel, before the trial jury was selected from the panel, that the previous conviction of appellant had been reversed by this court, necessitating* a new trial, the implications of these remarks, if any, could be construed as favorable to the accused.

In Stanley v. State, 174 Ark. 743, 297 S. W. 826 (1927), it was held that it was not error for the prosecuting* attorney in his opening* statement to tell the actual trial jury of a previous conviction and reversal by the Supreme Court. In Ford v. State, 222 Ark. 16, 257 S. W. 2d (1953), a far longer statement by the lower court to the effect that the defendant had been tried and convicted for the same crime previously was held not to be error. See also Youngblood v. State, 161 Ark. 144, 255 S. W. 572 (1924), cited by appellant. There, it was said that the purpose of the statute, Ark. Stat. Ann. § 43-2205 (Repl. 1964), was to prevent a former conviction from being* used in evidence or argument. In the present case, the fact that. Walker had been tried and convicted was not offered in evidence nor was it argued.

We therefore find no merit in appellant’s contentions under Point No. 5.

Point No. 6 — Permitting the State to read into evidence the transcript of previous testimony of Linda Ford and Mary Louise Roberts.

We agree with appellant that the testimony of Linda Ford in particular, the eyewitness to the shooting, was extremely material to the State’s case. We also agree with the trial court that it was necessary to produce her and have her present at the trial if she could he located, picked up and held as a material witness.

Ark. Stat. Ann. § 28-713 (Repl. 1962) provides as follows:

“Admissibility of testimony at prior trial. — On the trial of any cause, civil or criminal, the properly authenticated transcript of the testimony of any witness, or other evidence of the testimony of any witness when properly proved, which testimony was given in any court at any former trial or examination of the same cause between the same parties or their privies, may be read or admitted in evidence, when the former witness is dead, beyond the jurisdiction of the court, has become insane since the former trial or examination, or when for any reason the former witness may not be available, and also in all cases in which for any reason a former witness refuses to testify concerning the matters as to which he formerly testified. But no such transcript of testimony, nor proof of such testimony, may be admitted on behalf of either party in a criminal case unless it is first shown that the party against whom it is sought to be used was present, in person or by attorney, at the former trial or examination and there had the opportunity to examine or cross-examine the witness whose testimony is offered in evidence. [Init. Meas. 1936, No. 3 § 14; Acts 1937, § 14 p. 1384; Pope’s Dig., § 3916.”]

Chief of Police Ray Vick of the North Little Rock Police Department, and Chief of Police R. E. Brians of the Little Rock Police Department, testified that several weeks before appellant’s trial they had issued general pickup instructions as to these witnesses, including their names, clubs frequented, etc.

Deputy Sheriff Dennis L. Jones testified concerning his sustained effort to find the witnesses in advance of the trial.

We quote from appellant’s abstract of the testimony of Deputy Sheriff Jones:

“I am a deputy sheriff. I attempted to locate Linda Ford in reference to a subpoena. I called the police chief at Lake Village. I was later informed she was living at 1800 Scott St., Little Rock. I attempted to find her mother, who formerly lived with her at 1102% Main St., Little Rock, and was advised she no longer lived there. I learned today where her mother is supposed to be living and went there and found no one at home in this big rooming house. I rang the bell and looked in the windows but was able to raise no one. I asked for the assistance of the North Little Rock Police Department and the Little Rock Police Department. The last time Mary Roberts was seen in North Little Rock was some two or three weeks before the subpoena was issued. She was on the Wonder Grill lot in North Little Rock. Further information indicated she visited Barbara somebody who lives at 402 E. 12th St., North Little Rock. I made repeated trips by the Wonder Grill and by 402 E. 12th St. attempting to locate her automobile with negative results. Mary Roberts previously gave the address of 2209 McAlmont, which was her sister, Hazel Powell’s address. Investigation revealed that Hazel Powell did not live at that address any longer.”

It will be recalled that at the very beginning of the trial, all witnesses were required to come forward to be sworn. Linda Ford and Mary Louise Roberts did not appear to be -sworn. There was, therefore, no element of surprise to appellant when the State sought during the progress of the trial to offer their testimony as given at the previous trial. We have concluded that an adequate foundation was laid for the introduction of this previous testimony, and that the trial court did not abuse its discretion in permitting same to be received and to go to the jury.

At the first trial, Linda Ford testified in person and appellant was convicted and received the death sentence. It is generally recognized that the reading of previous testimony of a witness not present' in the courtroom is not as effective as having the witness on the stand. It may well be that the inability of the State to produce these witnesses for the second trial had a part in the ultimate lesser sentence of appellant to life imprisonment. Cases of interest on this point include the following:

Mode v. State, 234 Ark. 46, 350 S. W. 2d 675 (1961) ; Smith v. State, 222 Ark. 585, 261 S. W. 2d 788 (1953); Marks v. State, 192 Ark. 881, 95 S. W. 2d 634 (1936); Adams v. State, 176 Ark. 916, 5 S. W. 2d 946 (1928), and Edwards v. State, 171 Ark. 778, 286 S. W. 935 (1926).

We therefore find no merit in appellant’s contentions under Point No. 6.

Point No. 7 — Denying defendant’s motion to quash the regular, alternate and special jury panels.

Appellant contends that the petit and grand jury panels should have been quashed because they were not selected from a list of qualified electors as required by Ark. Stat. Ann. § 39-208 (Repl. 1962).

Prior to January 1, 1965, a citizen of Arkansas had to possess a current poll tax receipt in order to be a qualified elector. Amendment 51 of the Arkansas Constitution was adopted at the general election of November 3,1964 and superseded this requirement. It provided a new and permanent system of voter registration in order for a citizen to become a qualified elector. After Amendment 51 became effective the legislature recognizing the interim period of uncertainty as to the qualified electors pending the accomplishment of sufficient registration of voters to comprise lists of same from which adequate jury panels could be selected, passed Act 126 of 1965 to meet the situation, and we quote the preamble and portions of said act:

“Whereas, it now appears unlikely that the qualified individuals in Arkansas may be registered under Amendment 51 prior to March 1, 1965, and there will be an interim time from March 1, 1965 until later in the year when voter registration is an accomplished fact.
“Section I — All other persons who otherwise possess the qualifications of a grand or petit juror as now provided by the statutes of Arkansas and who have paid a poll tax between October 1, 1963 and October 1, 1965 are hereby declared to be an eligible grand or petit juror.
“Section II — This Act shall be in full force and effect from March 1, 1965 to October 1, 1965.”

The record reflects that the jury panels in this case were selected nearly two months before November 3, 1965, when the hearing on the motion to quash was heard. This necessarily made Act 126 of 1965 squarely applicable to the situation at hand. See Coger v. City of Fayetteville, 239 Ark. 688, 393 S. W. 2d 622 (1965); Harris v. State, 239 Ark. 771, 394 S. W. 2d 135 (1965), and also Tiner v. State, 239 Ark. 819, 394 S. W. 2d 608 (1965).

We therefore find no error in the denial of appellant’s motion to quash the jury panels. We also find no abuse of discretion by the trial court in refusing to disqualify the jury commissioners, or as to any other alleged irregularity in the selection of the trial jury.

We therefore find no merit in appellant’s contentions under Point No. 7.

Point No. 8 — Refusal of the court to admit defendant’s hospital records into evidence.

Appellant contends that it was error for the court to withdraw appellant’s hospital record after it had been properly admitted in accordance with Ark. Stat. Ann. § 28-928 and Ark. Stat. Ann. § 28-932 (Repl. 1962).

We agree with appellant in that the hospital record was properly admitted and should have been permitted to be read to the jury by the Chief Medical Records Librarian. The librarian as custodian of the medical records could not properly testify as to her opinion or interpretation of records which she held as custodian but did not personally make. The purpose of Ark. Stat. Ann. § 28-928 is to overcome the old rule that such written reports are hearsay and therefore such records are admissible if properly established as being made in the regular course of the hospital’s business procedures. However, during the trial, Dr. Robert M. Stainton, the doctor who had prepared the hospital report in question, was called as a witness and at that time it was admitted into evidence and read into the record by Dr. Stainton. Any error was thus completely cured.

We therefore find no merit in appellant’s contentions under Point No. 8.

Point No. 9 — Denial of defendant’s petition for a change of venue.

Ark. Stat. Ann. § 43-1501 (Repl. 1964) states:

“Prejudice. Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. [Crim. Code, § 414 (as added by Act Apr. 25, 1873, No. 98, § 1 p. 234; C. and M. Dig., § 3087; Pope’s Dig., § 3917.]”

The rule as to a change of venue has been frequently examined and is well established. As stated in Perry v. State, 232 Ark. 959, 342 S. W. 2d 95 (1960), the trial court has wide discretion in passing upon a petition for change of venue and unless it appears that the court has abused that discretion, this court will not reverse. See also Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422 (1961).

The newspaper articles that gave wide publicity to appellant’s case were published either before or just after appellant’s first trial in 1963, almost two years before the instant trial was held, with the exception of one editorial in the Arkansas Gazette published on May 12, 1965. We have concluded that the impact of the editorial coincided with the general distribution of the Gazette, which is statewide. While we do not approve of some of the inflamatory language in this editorial, we believe its adverse effect, if any, as to appellant had been dissipated at the' time of trial.

Furthermore, appellant’s counsel, during voir dire, thoroughly examined the jurors on this subject and all jurors who were accepted stated that they could give appellant a fair hearing and verdict, free of any influence by the editorial.

It appears, therefore, that there was ample support in the record for the decision of the trial court to deny the motion for a change of venue. We find no abuse of discretion by the trial court as to this issue.

We therefore find no merit in appellant’s contentions under Point No. 9.

Point No. 10 — Contentions as to error in instructions given or refused by the court.

We have examined all of the instructions given by the court to the jury. We find no error in the instructions. We have likewise examined the instructions requested by appellant which the court declined to give. All of such instructions were either fully covered by other instructions actually given or refused as erroneous under law.

We therefore find no merit in appellant’s contentions under Point No. 10.

Point No. 11 — Refusal of the court to instruct the jury on manslaughter.

The court refused to grant appellant’s request for an instruction on manslaughter, and this ruling is assigned as error. The same circumstances were presented to this court in Outler v. State, 154 Ark. 598, 243 S. W. 851 (1922), where it was said: “At any rate, the verdict of the jury under this instruction (of first degree and second degree murder) necessarily implied a finding that the killing was not done under circumstances which would reduce the degree of the offense to manslaughter, and no prejudice resulted from the failure of the court to instruct on the subject of manslaughter.” See Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778 (1948), and also Talley v. State, 236 Ark. 911, 370 S. W. 2d 604 (1963), where again the refusal to instruct on manslaughter was considered harmless error in view of the fact that the appellant was found guilty of first or second degree murder.

We therefore find no merit in appellant’s contentions under Point No. 11.

Point No. 12 — Refusal of the court to reduce the charge against appellant from first degree murder to second degree murder.

At the conclusion of the State’s case, the appellant moved for a reduction of the charge from first degree murder to second degree murder and also later requested a similar instruction to the jury, both of which were refused by the court.

As discussed under Point No. 11, the instructions as given to the jury authorized the jury to bring in a verdict of second degree' murder or a verdict of murder in the first degree.

Linda Ford, a passenger in the car of appellant, testified that appellant fired first at Officer Yaughn. The cab driver on the scene testified that he heard shots being fired before observing Officer Yaughn draw his pistol. Appellant must have known from the flashing dome light of the Barrentine police ear that his car was being stopped for a police check.

Appellant had no known reason to fear for his personal safety when his car was caused to slow down and pull over and stop by the police car behind it. Appellant opened the car door with a drawn gun in his hand and started the shooting with deadly accuracy. There is no suggestion in this record that he did not act of his own volition and with deliberation. The evidence in the case was certainly sufficient to authorize the jury in finding that appellant killed Officer Yaughn with deliberation, premeditation and malice aforethought.

The necessary elements of deliberation and premeditation in the offense of murder in the first degree may be inferred from the factual circumstances as shown by the evidence, where those circumstances clearly warrant the jury in such an inference or conclusion. In this case, the circumstances as reflected by the evidence are inconsistent with any other hypothesis than that of murder in the first degree. House v. State, 230 Ark. 622, 324 S. W. 2d 112 (1959), and Weldon v. State, 168 Ark. 534, 270 S. W. 968 (1925).

We therefore find no merit in appellant’s contentions under Point No. 12.

Having found no merit in any of the points urged by appellant, the judgment of the trial court is affirmed.

Affirmed.

See Per Curiam order and dissent, page 663.


author: Guy Amsler, Justice.

text:
    J. E. Stevenson Jr. v. Doris M. Marques
    5-3991
    407 S. W. 2d 391
    Opinion delivered October 31, 1966

      William H. Drew of Drew & Hollaway, for appellant.

      DuVal L. Purkins, for appellee.
   Guy Amsler, Justice.

Mrs. Hazel Cook Townsend owned some 3,500 acres of land in Chicot County, Arkansas, located on what is known as Stewart’s Island. On April 6, 1962, she conveyed some 2,000 acres of her holdings to M. Pickett Myers and J. E. Stevenson Jr., appellant in this cause, for a consideration of $185,000.00 plus the assumption of a $91,000.00 mortgage debt.

Among other reservations and exceptions contained in Mrs. Townsend’s conveyance to Myers and Stevenson was the following:

“It is further understood that Grantor will retain all present government cotton allotment, which has heretofore and now been allotted to any lands owned by her, and Grantees agree that they, their heirs and assigns, shall never make claim to any cotton allotment that may or could be alloted to the above conveyed lands, unless Grantor shall sell the remaining portion of her property; however, in no event will Grantees, their heirs or assigns, disturb any present cotton allotment now owned or held by Grantor; provided, however, if by reason of a change in the present program, Grantees can obtain a separate and additional cotton allotment, they may do so.”

In 1962, Mi's. Townsend farmed all the cotton allotment for the land retained by her and the acreage conveyed. The existence of Mrs. Townsend on this earth was terminated on December 8, 1962. J. W. Loyd was appointed executor and trustee of her estate. Doris M. Marques, appellee, later succeeded Mr. Loyd as trustee of the estate. Prior to the instant litigation Myers conveyed his interest in the land to appellant Stevenson.

In June of 1962, Stevenson, in an effort to obtain assistance for providing the land purchased from Mrs. Townsend with effective drainage and obtain a wheat allotment, filed a copy of his deed with the Chicot County Agricultural, Stabilization and Conservation Service. Then in January of 1963, appellant made application to the County A.S.C.S. for a marketing quota on the 2,000 acres owned by him. The committee then reconstituted the Townsend farm and found that Mrs. Townsend was entitled to 280.2 acres of cotton allotment and Stevenson 73.9 acres. On appeal to the State Review committee this was reversed on July 15, 1963, and Stevenson’s allotment was increased considerably while Mrs. Townsend’s was reduced.

From the middle of 1963 until December of 1965, appellee and her predecessor (Loyd) trustee, prosecuted numerous complaints before the State Committee and the Federal Courts but were unable to get the desired construction of the cotton allotment “retainer” clause contained in the Townsend conveyance.

On August 19, 1963, J. "W. Loyd, executor, filed this cause against the grantees, their Avives and the Prudential Insurance Company of America. Prudential was joined because it had made a substantial loan to the grantees of Mrs. ToAvnsend.

The complaint alleged, inter alia, that grantees had breached the “retainer” clause in the conveyance because they:

“kneAV at the time of the filing of this instrument with said office that this constituted a breach of this provision of their deed as under the applicable law and regulations of the Department of Agriculture, the giving of notice of this conveyance to the local representatives of the Department of Agriculture required them to immediately reconstitute and apportion the acreage allotments on said farm.
“Said Defendants further continued their breach of said provision by filing with the above local office of the United States Department of Agriculture on January 17, 1963, a petition for reconstitution of said farm, the purpose of which was to acquire the apportioned cotton allotment for the lands they had purchased under the deed.”

It Avas also alleged that:

“both parties to this transaction were informed as to the consequences of any notice to the Department ofAgriculture regarding a sale of a portion of the •farm and said Defendants’ actions-in immediately notifying the Department of Agriculture and subsequently requesting a reconstitution is in effect fraudulent as to this Plaintiff, or such inequitable conduct in the light of all other circumstances as to'justify and require a rescission of this contract of sale; that the loss of the cotton allotment to the remainder of the lands retained by Mrs. Hazel Cook Townsend is a direct result of the actions of the Defendants in notifying the Department of Agriculture of the sale and requesting reconstitution; that the value of this remaining portion of the land is greatly reduced by the loss of the cotton allotment and the value of the lands obtained by the Defendants in the sale is greatly enhanced by obtaining the cotton allotment and this is an enhancement for which they paid no consideration and which the said Mrs. Hazel Cook Townsend did not agree to sell and for which she received no consideration.”

Prayer of the complaint was that deed from Mrs. Townsend to her grantees and any subsequent conveyances by them be cancelled and that title be reinvested in petitioner as Trustee of the Townsend estate. Alternate prayer was that:

“in the event this Court should find that although Petitioner is entitled to a cancellation of said instrument but, such cancellation should not be decreed due to impossibility of placing the parties in status quo, that this Court determine the damages resulting to Petitioner and award Petitioner a judgment for same. . .”

There were a number of interjacent pleadings, one being a motion for summary judgment (which was denied) based mainly on the contention that the reservation “grantor will retain all present government cotton allotment which has heretofore and now been allotted to' any lands owned by her” applied only to the 1962 allotment (contract of sale was entered into on the 26th day of October, 1961, and conveyance executed April 6, 1962) and not to any allotment that might be made by the A.S.O.S. in future years.

Following a number of hearings and the taking of extensive proof the Chancellor declined to set the deed aside and concluded that:

“1. The contract is not invalid as in violation of any statute of the State of Arkansas, or of the United States of America;
2. The contract is not invalid as being violative of the public policy of the State of Arkansas, or of the United States of America;
3. Stevenson is not guilty of fraud;
4. Stevenson has breached the terms of the contract and is answerable in damages for such breach;
5. Loyd should have judgment against Stevenson for the sum of $3,695.00, with interest thereon at the rate of 6% per annum;”

Stevenson in prosecuting this appeal relies on six points for reversal. In our view a seriatim treatment of these points is unnecessary.

The trial court’s conclusions were predicated on what we consider to be a “strained” construction of the meaning, intent and results of the reservation contained in the Townsend conveyance. We quote briefly from the chancellor’s voluminous findings:

“Under the terms of the contract Stevenson contracted to permit Mrs. Townsend to retain and work the cotton allotment allocated to the Townsend plantation by the Department until such time as the remaining acreage of the plantation was sold. This agreement provided that she was to retain and work the cotton allotment to be allocated to the land in issue when the Townsend plantation was reconstituted and the cotton allotment “split-out” by the Department. The agreement to carry out the intent of the parties provided that Stevenson was to make available to Mrs. Townsend a sufficient amount of land on the land in issue to support the allotment. Stevenson has failed and refused to allow Loyd to work said cotton allotment and/or make available sufficient land to support the allotment, thus Stevenson has breached the contract. Stevenson worked 73.9 acres of the cotton allotment in the year of 1963. The rental value of cotton allotments in Chicot County, Arkansas, for the year of 1963 was $50.00 per acre. Loyd should have judgment against Stevenson for $3,695.00.”

There are a number of valid reasons why the meticulous chancellor’s construction of the reservation cannot be sustained. There was no obligation whatever placed on grantees (appellant) by the retainer except not to make claim to any cotton allotment that they might be entitled to until Mrs. Townsend sold her remaining lands and not to disturb any “present” cotton allotment held by their grantor.

Certainly it cannot be logically declared that this language bound grantees, their heirs and successors in title to guarantee grantor, her heirs and legal representatives a fixed cotton allotment (contrary to law) in perpetuity, on the lands retained by Mrs. Townsend.

This contract was prepared by Mrs. Townsend’s legal representative (not the attorney for appellee), and under our rule, if doubt exists regarding phraseology, it is to be construed most srrongly against her. Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S. W. 2d 288; Keith v. City of Cave Springs, 233 Ark. 363, 344 S. W. 2d 591.

Cotton allotments are made on an annual basis. At tbe time of tbe conveyance by Mrs. Townsend her cotton allotment for the crop year 1962 had already been fixed. In other words there was ‘1 a present government cotton allotment” m esse. Mrs. Townsend farmed her full quota in 1962. Black’s Law Dictionary defines “present” as meaning “now existing; at hand; relating to the present time; considered with reference to the present time.” Webster’s International Dictionary (3rd ed., 1961) sets out that “present” means “in being at this time; not past or future.”

The appellate court of Missouri dealt with this question in 1959 and said:

“The very nature of a cotton acreage allotment is such that it has no existence except for the one specific year. It expires with the crop year. It is not continuous. The fact there may (or may not) be another allotment fixed for the next year carries no certainty that a successive allotment will be in the same amount or acreage.” Duncan v. Black, 324 S. W. 2d 483 (Mo. 1959).

It is our conclusion that “present government cotton allotment” as used in the “retainer” clause of the conveyance meant the 1962 cotton acreage and that since Mrs. Townsend farmed her full quota for that year appellee cannot be held liable for any subsequent reduction in the cotton allotment to lands held by her legal representative.

It is significant that in drawing the sales contract and conveyance Mrs. Townsend’s representative added “heirs and assigns” after grantees’ names but omitted including any successor parties after “Grantor.” The exact provision being “Grantor will retain all present government cotton allotment.” It could reasonably be concluded from this that the “retainer” was intended as a personal covenant, at most, which expired with the demise of Mrs. Townsend. Field v. Morris, 88 Ark. 148, 114 S. W. 206; Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S. W. 2d 65.

Here we have a situation where all the parties or their representatives knew that “traffic” in crop allotments was forbidden by federal laws and regulations. They knew that a seller was required to report any sale to the County A.S.C.S., but when the buyer did what the seller was required to do under the law he is sued for damages alleging breach of contract and fraud. Appellee trustee is not entitled to equitable relief. The cause is therefore reversed and remanded to the trial court with directions to dismiss appellee’s complaint.


author: Hugh M. Bland, Justice.

text:
    Zilpha Nowak v. J. E. Etchieson, Ex’r et al
    5-3952
    408 S. W. 2d 476
    Opinion delivered October 31, 1966
    [Rehearing denied December 5, 1966.]

      Gardner & Stiensiek, for appellant.

      Marcus Evrard and H. G. Partlow Jr. and Graham Sudbury and Oscar Fendler, for appellee.
   Hugh M. Bland, Justice.

The merits of this controversy involve the construction of the Last Will and Testament of Ida B. Crockett. The will was executed March 27, 1963, consisting of six typewritten pages, signed by Ida B. Crockett and validly witnessed. Also involved is an instrument dated January 16, 1964 entitled “Codicil to Last Will and Testament.” Both of these instruments were admitted to probate on September 8, 1965.

By the terms of her will, provision was made for the payment of her just debts, taxes and expenses of administration. She bequeathed certain items of personal property to various persons and gave $1.00 to each niece or nephew not mentioned in the will.

The pertinent paragraphs of the will are nine and ten. In paragraph nine she devised to J. F. Etchieson as Trustee:

“* * * ‘all of the rest and residue of my real estate, wherever the same may be situated, of which I die seizéd and possessed,’ with directions that it be sold and with further directions to ‘divide the proceeds of such sale equally among the within named Ella Cunningham, Bertha Miller and Gladys Martin.’ The Trustee was to seek no further authority regarding the sale other than from the three beneficiaries of the trust who have been named herein. Merle Gaines, who was renting Testatrix’ farm land at the time of the execution of the will, was given preferential right to purchase said real estate.”

Paragraph ten is copied in full from the will:

“I give and bequeath to my nieces, Zilpha Nowak and Ella Lutz, as tenants in common owning equal interests with each other, all of the rest and residue of my property, if there be any such residue, that shall remain after the foregoing provisions of my will shall have been fully complied with.”

The codicil to the last will and testament devised a certain savings account in the Blytheville Federal Savings and Loan Association to Ella Lutz Cunningham, dependent on survivorship with remainder over to Don Lutz.

Prior to the death of the Testatrix, a niece, Ella Lutz, who is one and the same person as Ella Cunningham, died intestate being survived by two sons, Don Lutz and Marvin Lutz. It was stipulated that all parties to this action are of full age.

Objection was filed to the admission of the codicil to probate on behalf of appellant and Mrs. Gladys Martin, both of whom are mentioned in the Last Will and Testament of Ida B. Crockett, and also seeking a construction of the will.

On October 29, 1965, the Probate Court heard the objections to the admission of the codicil to probate and the petition to construe the will, and held that the codicil dated January 16, 1964 was not executed in accordance with the laws relating to the execution of wills and testaments and ordered it stricken from the probate records. The court also held that all property devised to Ella Lutz had lapsed and that this property, excluding that which was mentioned in the codicil, would pass and descend as though Ida B. Crockett had died intestate.

The court further held that the property described in the codicil to the last will and testament, this being the savings account in the Blytheville Federal Savings and Loan Association, would fall into the provisions of paragraph ten of the last will and testament dated March 27, 1963; that Zilpha Nowak is entitled to- one-half of all property devised in paragraph ten and the remaining one-half shall be as though Ida B. Crockett died intestate.

Appellant appeals and contends that she is the residuary devisee and that one-half of all property which would have otherwise passed to Ella Lutz would pass to her as residuary beneficiary under the terms of the will.

Don Lutz, who was mentioned in the codicil, filed his notice of cross-appeal from the court’s holding that the codicil is invalid.

For reversal appellant relies on two points:

“1. The Probate Court erred in making determination that all property devised and bequeathed to Ella Lutz under the Last Will and Testament of Ida B. Crockett passes intestate.
2. That the court should have held that all property devised and bequeathed to Ella Lutz passed into the residuary clause, paragraph 10, of the Last Will and Testament of Ida B. Crockett.”

It is crystal clear that the codicil was not executed according to the provision of Ark. Stat. Ann. § 60-403 (Supp. 1965) and the chancellor was correct in denying probate and striking it from the probate record. So, the cross-appeal must be affirmed.

We also think the chancellor was correct in his construction of the will. The will must be construed so as to ascertain or arrive at the intent of the testator from the language used giving consideration, force and meaning to each item in the entire instrument. In Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018, we said:

“The true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force, and meaning to each clause in the entire instrument. * * *
A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind in the construction of wills that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction. * * *

When we stand far enough away and look at the entire will of testatrix, it is readily apparent how she intended to dispose of her property. After certain bequests, some of personal property and some of real estate, she chose to devise all of the remainder of her real estate to a trustee with unlimited power to sell and convert it to cash to be divided equally between Ella Cunningham, Bertha Miller and Gladys Martin. It was clearly her intention, in disposing of all the remainder of her real estate in this manner, to dispose of it equally to the three named devisees. These parcels of land probably had different values and in order that the devisees would share equally in the division of the proceeds of the sale, she would avoid any inequities that might otherwise arise. The bequest to Ella 'Cunningham, having lapsed because of her demise prior to the death of the testatrix, passes as though Ida B. Crockett died intestate.

The majority rule is stated in 36 A. L. R. 2d 1118 as follows:

“It would seem to be a not unreasonable view that, prima facie, by a gift of all his residuary property to designated persons a testator intends that-whatever assets happen to fall within the provision shall go to those persons as being the ones preférréd by him in any event as against the whole world, and this whether or not he has defined or regarded them as a class or as joint tenants or possesses any knowledge or awareness of the legal concepts of class gift and joint tenancy. Nevertheless, as the later cases show, the rule which prevails in most jurisdictions, in the absence of statute or distinctly disclosed intention or justified construction of the will to the contrary, is that if the instrument disposes of residuary property or funds to two or more persons and one or some of them renounce the gift, or predecease the testator, or for any reason are or become disentitled to take, the shares affected do not inure to the other residuary beneficiaries in. augmentation of their shares but on the contrary pass as in case of intestacy.”

It is true that partial intestacy should be avoided if possible. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014. But intestacy in this case is inevitable in order to carry out the intention of the testator. Item 9 of the will related to realty only. At common law the rule as to lapsed devises of real estate was that it goes to the heirs at law. I Underhill on Wills, Art. 335. It is the province of this court to construe the will and not make it over. In doing this the will must be read from all four corners and determine the intention from the entire will. Item 9 is a particular residuary clause as distinguished from Item 10 which is a general residuary clause.

Appellant argues that Ella Lutz was not a residuary legatee in Item 9 of the will but rather was named as one of three individual beneficiaries of a Testamentary Trust. The trial court held that these distributees, under the trust, were individuals and not a. class. There was no appeal from that ruling. In Restatement of the Law, Second Edition, Chapter 12, Article 411, sub-paragraph C reads as follows:

“If real property is devised upon a trust which fails and there is no provision in the will effectively disposing of the residue of the testator’s real property, the devisee holds it upon a resulting trust for the heirs of the testator.”

The codicil held invalid here attempted to dispose of a savings account in the Blytheville Federal Savings and Loan Association and the devise was to Ella Lutz with the remainder over to Don Lutz. The codicil having failed and this bequest having lapsed, this property would pass to the general residuary clause so that under Item 10 of the will appellant would receive one-half as a tenant in common and the other one-half would pass as though Ida B. Crockett died intestate.

Finding no error, the decree of the chancery court is affirmed on direct appeal and on cross-appeal.