author: Conley Byrd, Justice.

text:
    Ronald T. BLAND v. STATE of Arkansas
    5613
    470 S.W. 2d 592
    Opinion delivered September 20, 1971

      Louis W. Rosteck, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty Gen., for appellee.
   Conley Byrd, Justice.

Appellant Ronald T. Bland was convicted of grand larceny and sentenced to two years imprisonment. For reversal he contends that the trial court erred in allowing the State to put on proof as to the value of the property stolen after it had rested its case and in admitting appellant’s confession into evidence. We find no merit on either issue.

The record shows that the trial was before the court without a jury and that the State was represented by a new and inexperienced deputy prosecuting attorney. When the State announced that it rested, the trial court pointed out that the value of the watches had not been proved. At that time the trial court permitted the State to reopen its case to show that the value of the watches stolen exceeded $35.00, thus placing the crime into the grand larceny category. The trial court properly exercised its discretion under the circumstances. See Ark. Stat. Ann. § 43-2114 (Repl. 1964) and Rochester v. State, 250 Ark. 758, 467 S.W. 2d 182 (1971.)

Detective Thomas testified that appellant was ararrested at approximately 10:30 P. M. and that the confession was given about 1:50 P. M. the following day. He also testified that prior to taking the confession he explained appellant’s constitutional rights to him. When appellant gave the statement, the officer observed that appellant could walk and talk all right and that he understood what he was doing. Appellant himself took the witness stand but made no complaint of any treatment received from the officers. Under the record here presented, the trial court properly admitted the confession.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Ledell MUMPHREY v. STATE of Arkansas
    5614
    470 S.W. 2d 589
    Opinion delivered September 20, 1971

      H. Allan Dishongh, for appellant.

      Ray Thornton, Attorney General; Garner Taylor, Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged by information with the crime of assault with intent to kill. The trial court, sitting as a jury by agreement, found appellant guilty and imposed a sentence of three years in the State Penitentiary. Present counsel was appointed to perfect this appeal in which it is asserted that the evidence is insufficient to sustain the conviction. We cannot agree.

It is well settled that on appeal we review the sufficiency of the evidence in the light most favorable to the appellee and if there is any substantial evidence to support the findings of the trier of the facts, we must affirm. McPeace & Carter v. State, 249 Ark. 832, (1971), 462 S.W. 2d 212.

Only two witnesses, the victim of the alleged assault and the appellant, testified as to the occurrence. The victim, Leonard Jones, testified that he and two of his friends went to a local nightclub where, although not a member, he was admitted after appellant “patted me down for a pistol.” Jones requested that his two friends also be admitted without the payment of a membership card. He stated that his request was refused by one of the owners of the club unless $6.00 membership cards were purchased. During this conversation some unidentified employee in the club repeatedly suggested to appellant that Jones be thrown out of the premises because he had been told to buy membership cards. Jones said that he invited this unknown person to throw him out and when he continued his conversation with this owner of the club he heard a shot and a bullet struck him. As Jones turned around he saw the appellant standing closeby with a pistol in his hand, at which time he was hit in the stomach by the second shot which was definitely fired by the appellant. Thereupon he turned in an effort to leave the premises but in the confusion his flight was impeded by someone. When he finally escaped to the outside he had suffered five 38-caliber bullet wounds to his body; namely his shoulder, stomach, chest, arm and hip. No bullets were introduced into evidence. Jones testified that he was unarmed and had made no threats to anyone. He only saw appellant shoot the one time. However, he “felt” there was someone else in the club also shooting although he saw no one doing so.

Appellant testified he was working as a “bouncer” at the club and that his employers had provided him with a pistol of a different caliber than the type of gun that caused the victim’s wounds. According to him, Jones and his friends came to the club in a drunken condition and appellant permitted their admittance without membership cards since he knew them. He stated that he went to the back of the club and afterwards heard three or four shots following an argument at the front of the club between the victim and one of the owners. He denied that he shot Jones or that he was even near him when the shots were fired. The appellant testified that one of the owners of the club did the shooting.

The conflicting versions of these two witnesses and all reasonable inferences to be drawn therefrom were questions for the trier of the facts to resolve. It was the prerogative of the court, sitting as a jury, to accept that testimony which it believed to be true and to discard that deemed to be false. Houpt v. State, 249 Ark. 485, (1970), 459 S.W. 2d 565; McPeace & Carter v. State, supra.

In the recent case of Ford v. State, 249 Ark. 695, (1970), 460 S.W. 2d 749, we quoted with approval from Davis v. State, 206 Ark. 726, 177 S.W. 2d 190 (1944) where this court said:

Although the state is required to prove that the defendant actually intended to kill, it need not depend upon declarations made by the defendant to establish such fact. While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and. all other facts and circumstances tending to reveal defendant’s state of mind.

When we consider all of the evidence in the light most favorable to the appellee, which we must do on appeal, we cannot say as a matter of law that the evidence is insufficient to support the trial court’s finding that appellant is guilty of assault with intent to kill.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    William Wayne DECKER v. STATE of Arkansas
    5603
    471 S.W. 2d 343
    Opinion delivered September 27, 1971
    [Rehearing denied November 1, 1971.]

      Wright, Lindsey ¿r Jennings, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

William Wayne Decker, appellant herein, was arrested by Officer Tommy Robinson of the North Little Rock Police Department, placed in the back seat of the automobile, and Officer Robinson proceeded toward police headquarters. While the car was stopped at an intersection, appellant produced a pistol, held it on Robinson and told the officer to give him (appellant) his pistol or he would shoot him. In compliance with this demand, Robinson gave to appellant the service revolver he was carrying, after which Decker left the car and fled north. Robinson then obtained a shotgun from the car and started in pursuit of appellant, firing at Decker four times with the shotgun. Four or five hours later, appellant was found in a house on the Arch Street Pike, lying on a bed in the back room of the house; he had sustained three wounds in the back of his body. Officers found the pistol there which hád been taken from Robinson, a .38 police service revolver, which was identified. Decker had told one of the officers where the gun was hidden. Another witness, David Romandia, who lived at the house where Decker was found, testified that appellant related to him how he had pulled his gun on the policeman and made the latter give to Decker his (the policeman’s) service revolver. On July 30, 1970, Decker pleaded guilty in the North Little Rock Municipal Court to the offense of drawing a weapon on an officer, was fined $500.00, and sentenced to six months confinement in the County Jail. On August 6, 1970, the Prosecuting Attorney for Pulaski County filed an Information charging Decker with the crime of robbery, arising out of the same incident. He was convicted and sentenced to serve four years in the state penitentiary. Appellant moved in the trial court to dismiss the charge, contending that the robbery trial placed him in double jeopardy of life or liberty in violation of Article II, Section 8 of the Arkansas Constitution, and in violation of the Fifth Amendment of the United States Constitution. The motion was denied, as was a motion for new trial based on the same contention. From the judgment of conviction of robbery, appellant brings this appeal. For reversal, only one point is asserted, viz, that the trial of the robbery charge placed the defendant in double jeopardy of life or liberty in violation of the Federal and Arkansas Constitutions as set out above.

We do not agree. The offenses were entirely separate crimes. Though arising out of the same incident, the two acts were certainly not the same offense. Ark. Stat. Ann. § 41-4001 (Repl. 1964) provides as follows:

“Every person and the aiders and abettors of every person who shall draw a pistol, gun or any other deadly weapon upon any other person or shall serve or give notice either verbal or in writing to any other person or shall place notice upon the door or above the premises of any other person for the purpose of frightening or intimidating him from doing any lawful act, when such person drawing said pistol or gun or other deadly weapon is not justified in self-defense for so doing, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in a sum not less than five hundred [$500] nor more than one thousand dollars [$1,000] and shall be imprisoned in the county jail for twelve [12] months.”

Ark. Stat. Ann. § 41-3601 (Repl. 1964) defines robbery thusly:

“Robbery is the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.”

It will be immediately observed that the robbery statute includes an additional act, not present in the statute first quoted, viz, the felonious and violent taking of goods or other valuable thing from the person of another by force or intimidation; furthermore, a violation of Ark. Stat. Ann. § 41-4001 (Repl. 1964) is not included in the charge of robbery as a lesser offense, unlike petit larceny, which is included where one is charged with grand larceny; nor is it an offense that can be joined with the offense of robbery in an indictment or information. Ark. Stat. Ann. § 43-1010 (Repl. 1964).

We have said that where two acts are intended to suppress different evils, the acquittal or conviction of one will not preclude prosecution of the other. Sparks v. State, 88 Ark. 523, 114 S. W. 1183.

Of course, if Decker had only drawn his pistol on the officer, and then departed, he would have been guilty of violating 41-4001, but when he forced Robinson to hand over his own pistol and carried it away with him, an entirely separate and different offense was committed. However, even where there are no additional acts upon which a second charge is based, we have said that the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. See Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, and Turner v. State, 248 Ark. 367, 452 S. W. 2d 317.

Appellant cites the case of Ashe v. Swenson, 397 U. S. 436 (1970), in support of his double jeopardy argument, but the facts in that case are entirely different from the facts before us. There, six men were engaged in a poker game in the basement of a home when suddenly masked men armed with shotguns and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. Ashe was subsequently arrested and placed on trial for the robbery of a man named Knight, one of the poker players. The proof identifying Ashe as one of the robbers was weak and the jury brought in a verdict of not guilty. Sometime thereafter, the state charged Ashe with the robbery of one of the other poker players and Ashe was convicted. The conviction was affirmed by the Missouri Supreme Court but reversed by the United States Supreme Court on the basis of the doctrine of “collateral estoppel”, which the court held was embodied in the Fifth Amendment guarantee against double jeopardy. The opinion made clear that the reversal was predicated on the fact that a jury had already determined that Ashe was not one of the robbers, and any subsequent prosecution for that same robbery, even though of a different victim placed the defendant in double jeopardy. The court stated:

“The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again [Emphasis supplied].”

It is apparent that the facts in the above case are entirely different from those here at issue, and actually, appellant is only relying on a concurring opinion by Mr. Justice Brennan, joined by Justices Douglas and Marshall, in which the view is expressed that even if the rule of collateral estoppel had been inapplicable in the facts of the case, the double jeopardy clause found in the Fifth Amendment to the Constitution of the United States would bar a prosecution, the two prosecutions arising out of one criminal episode. As stated however, this was only a concurring opinion, and was not the view of the majority.

It follows from what has been said that we do not agree that the trial of the robbery charge placed appellant in double jeopardy in violation of the Federal and State Constitutions.

Affirmed.

      . See Southworth v. State, 42 Ark. 270.

       The opinion in Ashe v. Swenson, supra, in discussing “collateral estoppel’’ stated that this term “means simply that wben an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit”.


author: Lyle Brown, Justice.

text:
    THE CITY NATIONAL BANK of Fort Smith, Arkansas v. Hoyt L. BROWN
    5-5611
    471 S.W. 2d 347
    Opinion delivered September 27, 1971
    [Rehearing denied November 1, 1971]

      Harper, Young & Smith, for appellant.

      Garner, Parker ér Garner, for appellee.
   Lyle Brown, Justice.

This is an appeal from the granting of a summary judgment to appellee, Hoyt B. Brown, and against appellant, The City National Bank of Fort Smith, Arkansas. Both parties filed motions for summary judgment. Based on the pleadings, along with the affidavit filed by appellant, it is contended that in fact appellant’s motion for summary judgment should have been granted.

Appellee executed an installment contract in favor of Howard Motor Company. The contract was on a form supplied by the bank to the motor company and was forthwith assigned to the bank. The crucial question is whether the contract (usurious by a few dollars on its face) constituted a transaction between appellee and Howard Motor Company, or between appellee and the bank with Howard Motor Company acting as appellant’s agent. If it was a transaction between appellee and the motor company then the Arkansas law of usury applies. If it was a contract between appellee and the bank then the federal usury law appears to apply. In the latter event appellee would be permitted to claim only a forfeiture of the entire interest. That is because appellant is a national bank and the penalties for usury, as set forth in 12 U. S. C. § 86 govern. Farmers’ and Mechanic’s National Bank of Buffalo v. Dearing, 91 U. S. 29 (1875).

When we consider the pleadings, the affidavit made by an executive officer of the bank, and the contract, we think the trial court was eminently correct in awarding summary judgment to appellee. That is because those instruments show that (1) the contract was executed between appellee and the car dealer, (2) the car dealer made an assignment to the bank with recourse, and (3) the car dealer discounted the paper to the bank at approximately five per cent less than the face value of the contract. Under those undisputed circumstances we are unable to deduce, as appellant would have us do, that the initial transaction was between appellant and appellee.

In support of its contention appellant cites Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973 (1952). In Hare the dealer had the purchaser execute forms supplied by appellee. Nevertheless, this court held that the transaction was one between the deailer and the customer and pointedly stated that the dealer was not acting as agent for appellee. Appellant also cites First National Bank v. Thompson, 249 Ark. 972, 463 S. W. 2d 87 (1971). The question now before us was not in issue in that case. There the problem was to determine the date from which interest would accrue in testing for usury. Appellant also relies on Schuck v. Murdock Acceptance Corp., 220 Ark. 56, 247 S. W. 2d 1 (1952). We cannot glean from the Schuck case any principle of law which lends aid to appellant’s case. There it was shown that Murdock and the dealer had a long history of dealings; that Murdock’s forms were left with the dealer; and that the total circumstances showed a “mutuality of interests” Consequently, said this court, Murdock was not an innocent purchaser of the paper. We fail to see how that finding sheds any light on the problem before us.

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    Charles POE v. STATE of Arkansas
    5608
    470 S.W. 2d 818
    Opinion delivered September 27, 1971

      Louis W. Rosteck, for appellant.

      Ray Thornton, Attorney General; Garner Taylor, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant first contends that his conviction and sentence of forgery and uttering under our habitual criminal . statute [Ark. Stat. Ann. §§ 43-2328 — 2330 (Repl. 1964) (Supp. 1969)] should be reversed because that statute violates Article 2, Sections 3 and 8, of the State Constitution. We have previously sustained the statute against attacks on its constitutionality. Ferguson v. State, 249 Ark. 138, 458 S.W. 2d 383. Appellant argues, however, that the equal protection and due process clauses of the above sections have been breached in his case. He bottoms this argument upon the circuit judge’s statement during trial that the judge had no experience with the statute. He contends that utilization of the statute is discretionary with the prosecuting attorney, and thus permits discriminatory application to different habitual offenders.

We do not agree with this argument. The statute is not couched in language indicative of an intention that its invocation by prosecuting officers be discretionary any more than the statutes fixing punishment for the crimes themselves. The language in' all provide that one convicted “shall” be punished by a term of imprisonment within a prescribed range. See Ark. Stat. Ann. §§ 41-1803, 1805, 1810, 1823 (Repl. 1964). Certainly the act as written is invulnerable to attacks for denial of equal protection or for violation of due process. See Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917 (1912); McDonald v. Massachusetts, 180 U. S. 311, 21 S. Ct. 389, 45 L. Ed. 542 (1901); Moore v. Missouri, 159 U. S. 673, 16 S. Ct. 179, 40 L. Ed. 301 (1895); State v. Hicks, 213 Ore. 619, 325 P. 2d 794 (1958); State v. Bailleaux, 218 Ore. 356, 343 P. 2d 1108 (1959); Skinner v. Prather, 136 Kan. 879, 18 P. 2d 154 (1933); State v. Howell, 240 Ore. 558, 402 P. 2d 89 (1965), cert. denied, 383 U. S. 922, 86 S. Ct. 898, 15 L. Ed. 2d 676 (1966).

We know that the statute has been invoked in this state in many instances. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887; Jackson v. State, 226 Ark. 731, 293 S. W. 2d 699; McIlwain v. State, 226 Ark. 818, 294 S. W. 2d 350; Bowling v. State, 229 Ark. 876, 318 S. W. 2d 808; Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816; Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499; Osborne v. State, 237 Ark. 170, 371 S. W. 2d 518; Miller v. State, 239 Ark. 836, 394 S. W. 2d 601; Cummings v. State, 239 Ark. 1027, 396 S. W. 2d 298; Walker v. State, 240 Ark. 441, 399 S. W. 2d 672; Thom v. State, 248 Ark. 180, 450 S. W. 2d 550; Flurry v. State, 248 Ark. 722, 453 S. W. 2d 402; Dolphus v. State, 248 Ark. 799, 454 S. W. 2d 88.

The record does not disclose that the prosecuting attorney, in seeking application of the act in this case, acted arbitrarily, capriciously or wilfully discriminated against appellant or a class of which he was a member. We can only speculate why the circuit judge had no previous experience with the act. No support for appellant’s position is disclosed other than the bare statement by the judge. The most that can be said is that there may have been some laxity in the enforcement of the act. In other jurisdictions laxity in enforcement, even though without apparent excuse, has been held insufficient to render application of such a statute to an individual defendant a denial of equal protection or due process of law, in the absence of any showing of arbitrary or capricious action or of a wilful intention to discriminate. State v. Hicks, 213 Ore. 619, 325 P. 2d 794 (1958); State v. Bailleaux, 218 Ore. 356, 343 P. 2d 1108 (1959); State v. Howell, 240 Ore. 558, 402 P. 2d 89 (1965), cert. denied, 383 U. S. 922, 86 S. Ct. 898, 15 L. Ed. 2d 676 (1966); Skinner v. Prather, 136 Kan. 879, 18 P. 2d 154 (1933); Sanders v. Waters, 199 F. 2d 317 (10th Cir. 1952); Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1961). See also, Ex parte Boman, 160 Tex. Crim. 148, 268 S. W. 2d 186 (1954); People v. Johnson, 412 Ill. 109, 105 N. E. 2d 766 (1952), cert. denied, 344 U. S. 858, 73 S. Ct. 98, 97 L. Ed. 666 (1952), 347 U. S. 955, 74 S. Ct. 681, 98 L. Ed. 1100 (1954), reh. denied, 347 U. S. 1022, 74 S. Ct. 873, 98 L. Ed. 1142 (1954); People v. Mock Don Yuen, 67 Cal. App. 597, 227 P. 948 (1924). It has been said that failure of a prosecutor to enforce the law as to some persons should not be converted into a defense for others charged with crime. State v. Hicks, supra. The United States Court of Appeals for the Fifth Circuit stated that it had never been held that one who is guilty of a crime cannot be punished merely because others equally guilty had not been prosecuted or convicted. Saunders v. Lowry, 58 F. 2d 158 (5th Cir. 1932). The Supreme Court of the United States has held that even conscious selectivity in enforcement of such an act which is not based upon unjustifiable standards or arbitrary classification does not offend against constitutional equal protection and due process standards. Oyler v. Boles, supra.

We cannot sustain appellant’s contentions on the record before us. We certainly are unwilling to say that the mere failure of prosecuting attorneys in one district of the state to previously invoke the act, whether because of lack of information of previous convictions in other cases or because of selectivity in enforcement, makes the present or subsequent application of the act a denial of equal protection or due process.

Appellant’s remaining point for reversal is a contention that the evidence was insufficient to support the conviction. He says that the state failed to prove that he fraudulently obtained the possession of, or deprived another of, money or property or caused another to be injured in his estate or lawful right by forgery or uttering of a check. This argument is based upon testimony showing that long before the check was presented the person whose name was forged had closed his account in the bank upon which the check was drawn, that the name of the bank had been changed from that appearing on the check, and that one digit of the apparent drawer’s account number was missing. The check was not paid when presented by a person identified as the defendant. Thus, says appellant, he did not deprive either the bank or the person whose name was signed to the check of any money or property or injure anyone in his estate or lawful right. The fallacy in this argument is that the forgery and uttering statutes do not require that the purpose of the forger or utterer be accomplished. The gist of both offenses is guilty intent. They are committed when a check is forged, in the first instance, and offered as genuine, in the second, with the intent to defraud, even though the fraud is not actually perpetrated. Ark. Stat. Ann. §§ 41-1803, 41-1805 (Repl. 1964). Bennett v. State, 62 Ark. 516, 36 S. W. 947; Holloway v. State, 90 Ark. 123, 118 S. W. 256; Maloney v. State, 91 Ark. 485, 121 S. W. 728, 134 Am. St. R. 83, 18 Ann. Cas. 480.

The judgment is affirmed.


author: • J. Fred Jones, Justice.

text:
    Thomas Wayne HURST v. STATE of Arkansas
    5610
    470 S.W. 2d 815
    Opinion delivered September 27, 1971

      Louis J. Longinotti, III, for appellant.
    ■ Ray Thornton, Attorney General; Garner L, Taylor, Jr., Asst, Atty. Gen., for appellee.
   • J. Fred Jones, Justice.

Thomas Wayne Hurst was convicted of robbery at: a jury trial in the Garland County Circuit Court and was sentenced to 10 years in the penitentiary. On appeal to this court he relies on the following points for reversal:

"The verdict was contrary to the law.
The verdict was contrary to the evidence.
The verdict was contrary to both the law and evidence.
The verdict and sentence were excessive.”

The gist of appellant’s argument under his first three points is that the state’s evidence failed to sustain his conviction of robbery as defined by statute.

Ark. Stat. Ann. § 41-3601 (Repl. 1964) defines the crime of robbery as “the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.” The appellant argues that the state simply failed to prove that he took anything from the alleged victim, Mr. Scurlock, by force or intimidation. We do not agree.

Mr. Scurlock was an 84 year old man who lived at a rooming house near the Broadway Lounge in Hot Springs. He had just been released from the Veterans Hospital in Little Rock where he had undergone a prostate operation, and had returned to Hot Springs on the day of the alleged crime.

On the evening in question Mr. Scurlock had gone to the Broadway Lounge (a pool hall where beer was sold) and was drinking beer and watching the pool games. According to Mr. Scurlock’s testimony, he was drinking beer at a table in the pool hall when the appellant joined him. They engaged in conversation and continued to drink beer together during which time, according to the evidence, Scurlock, in addition to paying for the beer, also purchased sandwiches for himself and the appellant, and the appellant played three games of pool with a friend, Steve Kelly. From other testimony, as well as that of the appellant, Scurlock wagered $5.00 on each of the three games. Scurlock would bet Kelly $5.00 that the appellant would win the game. The appellant would purposely lose, “throw the game,” and then he and Kelly would divide Kelly’s winnings.

According to Mr. Scurlock, in the course of his conversation with the appellant while drinking beer, the conversation drifted to race horses, a subject in which Mr. Scurlock was interested. The appellant told Mr. Scurlock that he was a “stable boy” for some race horse owners from Missouri and was in charge of some horses they had in Hot Springs. He offered to take Mr. Scurlock out to see the horses and Mr. Scurlock accepted the invitation. Mr. Scurlock testified that he rode with the appellant out into the country and when they reached a lonely point on a road, the appellant stopped the car and stated to Mr. Scurlock, “this is where we get off.” He testified that the appellant then grabbed him and threw him down into a ditch beside the road with such force that the breath was knocked out of him. Mr. Scurlock testified that the appellant then kicked him in the side and drove off leaving him in the ditch where he remained until discovered by a deputy sheriff who took him to a hospital. He says that he had a wallet containing approximately $60 in his pocket when he went riding with the appellant, and that on the way to the hospital he discovered that his wallet and the money were gone.

The appellant testified in his own defense and his testimony confirms that of Mr. Scurlock up to the point of their departure from the Broadway Lounge. The appellant testified that he is 22 years of age, and that during the course of his conversation with Mr. Scurlock, while drinking beer in the pool hall, they agreed to drive out into the country to a different tavern. He says that they purchased some beer at the other tavern and that they stopped beside the road and were just drinking the beer and talking. He then testified as follows:

“. . . we set there and drink most of the beer and he was talking about how much money he’d lost on my pool games. And he took his wallet and held it out like that and said, ‘If I gave you the money I’ve got in my wallet right now, you’d lose it all.’ And I said, ‘No, I wouldn’t.’ And he said, ‘Yes, you would, there it is.’ So I took it and stuck it in my shirt pocket and we set there and drank for awhile more and he got to — anyway, he made me mad, talking about how I shot pool and this and that, I told him, I said, ‘Well, just get out.’ And whenever he got out, why, I drove off and came back to the Broadway Lounge, and picked up Steve Kelly. And I wasn’t there about, about 5 minutes, I ordered a beer and Steve Kelly and I drove to the Track Drive-in and ate a sandwich and then we drove back down to the Past Time. When we got to the Past Time Sheriff Brown was there and he asked me what my name was and I told him and he told me that I was under arrest.
* * #
Q. What all did you have of Mr. Scurlock’s?
A. Nothing but $17.00.
Q. What did you do with the wallet?
A. Threw it out the window.

The appellant argues that the state did not directly prove any taking of Scurlock’s money but relied solely on circumstantial evidence which allows other reasonable hypotheses explaining the missing money.

It is well established that circumstantial evidence can sustain a conviction in Arkansas. Mathis v. State, 249 Ark. 1088, 464 S. W. 2d 48, (Feb. 22, 1971); Cook v. State, 248 Ark. 332, 451 S. W. 2d 473; Walker v. State, 229 Ark. 685, 317 S. W. 2d 823; and that no greater degree of proof is required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced beyond a reasonable doubt. See Mathis v. State, supra; Casteel v. State, 202 Ark. 663, 152 S. W. 2d 554; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186 Caradine v. State, 189 Ark. 771, 75 S. W. 2d 671.

It is true that the general rule as to the sufficiency of circumstantial evidence in Arkansas is stated in Ayers v. State, 247 Ark. 174, 444 S. W. 2d 695, as follows:

“Where circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such . evidence must exclude every other reasonable hypothesis but the guilt of the accused.”

The state did not rely on circumstantial evidence alone in the case at bar, for there was direct testimony on every phase of the case except the manner in which the appellant obtained possession of Scurlock’s wallet and money. Scurlock missed his wallet soon after his unusual encounter with the appellant and he advised the officers that he had been assaulted and robbed by the appellant. The appellant testified that Scurlock gave him the money. Viewing all the evidence in the light most favorable to the state, as we must (Cook v. State, supra), we are of the opinion that the circumstantial evidence in this case was sufficient to justify the jury in excluding every other reasonable hypothesis but the guilt of the appellant. The 22 year old appellant brazenly admits defrauding the 84 year old Scurlock out of money by purposely “throwing” pool games. He admits taking Scurlock out into the country; he admits obtaining Scurlock’s wallet and money and then getting mad at Scurlock and abandoning him beside the road. And lastly, he admits disposing of Scurlock’s wallet by throwing it from the window of his automobile.

The jury might well have considered that since Hurst admitted having Scurlock’s money and wallet, the possible inferences that the money was lost or stolen by someone else was negated, and that the only possibilities left would be that the money was stolen by Hurst or it was given to him. They might well have concluded that the hypothesis that Scurlock gave Hurst his money, under the circumstances described by Hurst, was not reasonable in the light of all the evidence, particularly when Scurlock supposedly gave Hurst his wallet also, and Hurst threw the wallet from his automobile before returning to downtown Hot Springs. We are of the opinion that the jury verdict was sustained by the evidence.

As to appellant’s fourth point, the penalty for the crime of robbery in Arkansas is fixed by statute at not less than three nor more than 21 years, Ark. Stat. Ann. § 41-3602 (Repl. 1964). The appellant argues that the sentence of 10 years was excessive. He recognizes our holding in Hall v. State, 113 Ark. 454, 168 S. W. 1122 where we said:

“It was the peculiar province of the jury to weigh testimony of the witnesses, and this Court is not at liberty to reduce the punishment, even though we might think it too severe.”

We also reached the same conclusion in Osborne v. State, 237 Ark. 5, 371 S. W. 2d 518, with the additional observation that the right to exercise clemency is vested not in the courts but in the chief executive under Art. 6, § 18, of the Arkansas Constitution. The appellant recognizes our prior holdings on this point but points out that Act 333 of the 1971 legislature provides as follows:

“A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive.” (Emphasis added).

The appellant argues that this court now has the unquestioned authority to reduce a sentence of one convicted of crime, if we deem such sentence excessive. We do not question the wording of the 1971 Act, as quoted by the appellant, but having concluded that the evidence is sufficient to sustain the judgment and finding no other error in the record, the extent of our authority under Act 333 is not before us. The authority of the Supreme Court of California under a very similar Act, was before that court in People v. Odle, 230 P. 2d 345, and the question was resolved by that court contrary to the appellant’s contentions in the case at bar.

The judgment is affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    M. M. POWELL v. STATE of Arkansas
    5592
    471 S.W. 2d 333
    Opinion delivered September 27, 1971
    [Rehearing denied November 1, 1971]

      Sam Sexton, Jr., for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant M. M. Powell, for reversal of his grand larceny conviction, alleges:

“1. The Court erred in overruling defendant’s demurrer to the information in that the information or Bill of Particulars contained no allegation of ownership of property allegedly stolen.
2. The prosecuting attorney denied to the defendant a fair trial by commenting on the defendant’s not taking the stand.
3. The evidence is not sufficient to support the verdict.”

The record shows that the information and bench warrant charging appellant with robbery were filed on December 19, 1969. On January 22, 1970, appellant filed a motion for Bill of Particulars and on the same date asked that his motion for Bill of Particulars be withdrawn, waived formal arraignment and entered a plea of not guilty. On January 29, 1970, the state filed a Bill of Particulars which, among other things, provided:

“1. The State of Arkansas contends that Richard Daniels was robbed both by force and intimidation. The State of Arkansas also contends that the lesser offense of Grand Larceny is included in the charge made against the Defendant herein, and the State of Arkansas requests permission and leave of the Court that the information filed herein be amended to state in the body thereof, as follows: The said Defendant, on the 19th day of December, 1969, did unlawfully and feloniously take, steal and carry away from Richard Daniels cash money in the amount of $22,-650.00, against the peace and dignity of the State of Arkansas.”

The case was originally set for trial at 9:00 A. M. on February 16, 1970. At 8:50 A. M., appellant filed a petition in Federal Court, which delayed trial until Oct. 26, 1970, on which date he filed his “Demurrer-Exception and Second Motion to Quash Information.” In that plea of abatement, appellant alleged, among other things:

“Comes, now, Marshall Mays Powell, Defendant, and files his second Motion to Quash the information and demurs and excepts to said information for the following reasons:
# # *
"II. ... (3) It fails to allege the ownership of said monies to be then and there the corporeal personal property of the said Richard Daniels; nor ownership of that of any other person, the name or names of the owners of said money.
“(Thus, the attorneys for this case cannot properly interrogate and exercise challenges of the prospective jurors, who might have any affiliation with owners of said money.)
“(4) Said information (and /or Bill of Particulars if the Court should hold that this case is a prosecution thereon) does not set forth with particularity allegations sufficient to apprise this Defendant of the nature of the charge against him, and, as a part of this demurrer-exception and motion to quash, this Defendant here — now requests an amended Bill of Particulars so that he may properly prepare his defense. (27 Am. Jurisprudence) . . .
* * #
“WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Demurrer-Exception and Second Motion to Quash Information be in all things sustained, and that this prosecution be abated and dismissed from the docket of this Court.”

The proof adduced by the State showed that Richard P. Daniels was a special investigator with the Alcohol, Tobacco and Firearms Division of the U. S. Treasury Department. In that capacity he was to purchase some stolen firearms allegedly transported in interstate commerce. Pursuant to some previous contacts he went to Mena, Arkansas, where he met Carl Wayne Matthews and Peter Mavrikis at Abby’s Cafe. On his person he had $23,000, part of which was his own funds, part was Federal funds and the remainder was furnished by the Arkansas State Police — the latter money having been handed to him by Marion Burton, the Executive Secretary to Governor Rockefeller. After Mavrikis decided that Daniels and his helper, Floyd Jones, were not federal agents, Matthews drove off in a blue and white ’69 Oldsmobile toward Mena and returned with appellant. Daniels got into the Oldsmobile with Matthews and appellant. Appellant then told Daniels that they were ready to do business if Daniels had the money. At this point Daniels got the money from his automobile and returned to the Oldsmobile and got into the back seat. Appellant then indicated that he wanted Daniels to give the money to him. Appellant refused to get in the back seat with Daniels to count the money and at his insistence Daniels handed the money to appellant in the front seat. In so doing appellant told Daniels that he would count the money and hand it back. Appellant after counting the $23,000, handed $350 back to Daniels and began putting the remainder of the money into a canvas bag. When Daniels objected the car jerked and Matthews pushed Daniels back and held his hand under a newspaper in such way that Daniels thought he had a gun. About this time appellant pitched a locked canvas money bag back to Daniels and suggested that the deal was off. Daniels then jumped out of the car and asked Jones if he had a pocket knife. When Jones stated that he did not, Daniels told Jones to stay there while he went after a knife. At this time appellant and Matthews drove away. Inside Abby’s Cafe, Daniels cut the bag open and determined that it contained only play money. He then notified the other officers by radio that appellant and Matthews had the money. Appellant was arrested about two miles away and the money was recovered.

S. Perry Penland, a Florida lawyer, testified to a prior transaction between him and appellant whereby appellant absconded with $140,000 through the use of a canvas bag under similar circumstances.

POINT I. We find no merit in appellant’s contention that the trial court erred in overruling his demurrer to the information. As we read the Bill of Particulars, it alleges that appellant stole the money from the possession of Richard Daniels. The authorities generally support the proposition that ownership may be laid either in the real owner or in the person in whose possession the property was at the time of the theft. See State v. Esmond, 135 Ark. 168, 204 S. W. 210 (1918); Cook v. State, 80 Ark. 495, 97 S. W. 683 (1906), and 50 Am. Jur. 2d Larceny § 132. Thus the charge as made was sufficient against appellant’s plea in abatement.

POINT II. One thrust of appellant’s argument that the prosecution denied him a fair trial by commenting on his failure to take the witness stand arose during cross examination of Daniels in this manner:

“Q. (Cont’d. by Mr. Foreman) Did you personally investigate whether or not on the following Sunday afternoon and/or Monday morning, the exact list of guns that were read off into this record from your statement awhile ago were changed from one truck to another at Y-City?
MR. HARDEGREE: Your Honor, I object.
THE COURT: What is the purpose of it, please, Mr. Foreman?
MR. FOREMAN: To bear out the defense’s statement to the jury that the guns were here, and were to be delivered, and that my client was simply a broker to watch the money and see that the owners of the guns got it.
MR. HARDEGREE: Now, your Honor, to which the State says that surely the defendant can testify in person and by personal knowledge.
THE COURT: If he has any personal knowledge of this, I will let him so testify. I don’t want him to testify to any hearsay.
MR. FOREMAN: May we adjourn for a record, Your Honor?
THE COURT: To do further than the record that has already been made?
MR. FOREMAN: Yes, sir, I ask that either the jury be retired, or that we retire with the court reporter.
THE COURT: If you desire, we will go in chambers. I feel I have ruled on it unless—
MR. FOREMAN: I know you have ruled on it. I just want to make a record on it. I’m not going to argue with the Court.

(At this point, the Court, counsel and the court reporter retired into chambers out of the hearing of the jury, and the following proceedings were had:)

IN CHAMBERS:

MR. FOREMAN: Comes the defendant, Marshall Mays Powell, and moves for a mistrial because of the conduct of the Prosecuting Attorney, Joe Hardegree, in commenting that the defendant could testify if he wanted to, . . .”

After a hearing in chambers on the motion for a mistrial the Court returned to the court room where the following occurred:

“THE COURT: Members of the jury, do any of you remember — and I will ask you to express yourself by a show of hands — do any of you remember an objection made by Mr. Hardegree and just what he said in that objection just prior to this recess? I assume that you did not. I think two or three of us may have been talking at once. I didn’t understand it either, but if any such objection was made by Mr. Hardegree, and I am sure one was made. I remember he made an objection. I am asking you at this time to wholly and completely disregard anything Mr. Hardegree may have said in making the objection into the record. Is there anyone who couldn’t do that? Thank you. You may proceed.”

Ark. Stat. Ann. § 43-1012 (Repl. 1964) provides:

“No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merit.”

As we read the record any error on the part of the prosecuting attorney became harmless when the trial court determined that the jurors had not even heard the remark.

The appellant elected not to take the witness stand and the other remarks by the prosecuting attorney occurred during closing argument in this manner:

“You know; members of the jury, I don’t mind a defense counsel at all' reminding the jury that his client is just as entitled to credibility by the jury as police officers are, and it’s proper and right that you be questioned as to whether or not you would give more credence to the statements of a police officer than you would perhaps—
MR. FOREMAN: I object to that, Your Honor.
THE COURT: Yes, sir, I will sustain the objection. (Cont’d. by Mr. Hardegree) Thank you, Your Honor. But has the defendant, members of the jury, shown any reason why the credibility of Richard Daniels, William Sprecher, Robert Beckham, James Beech, James Lester, or any officer in this case, should be accepted at anything less than we would accept the testimony of a man who appears here, and whose credibility appears to be good.
MR. FOREMAN: Your Honor, I ask for a mistrial. (Cont’d. by Mr. Hardegree) What about—
THE COURT: Members of the jury — (Cont’d. by Mr. Hardegree) — the fact that the witness Pen-land’s testimony stands unchallenged? Absolutely unchallenged. Mr. Penland wasn’t even cross-examined. He came in and told you how this man, Marshall Powell, had run a confidence game on him in Corpus Christi, Texas, and stolen that great amount of money from him, and the facts of that case with the exception of names, brands, times and places, was exactly identical. In substance it was exactly identical to this operation here, up to the point where Daniels was handed the bag, and he knew something was wrong. It was identical. But the witness Penland was not even challenged.”

When the prosecuting attorney said that he did not mind defense counsel reminding the jury that his client was entitled to as much credibility as police officers, the court took the action requested by appellant and sustained the objection made. Appellant at that time asked for no further relief. The remarks of the prosecuting attorney thereafter fall in the category of fair comment on the evidence in the record. See Shaddox v. State, 244 Ark. 747, 427 S. W. 2d 198 (1968).

In his contention that the closing argument was a comment on his failure to testify, appellant points out that the jury during its deliberation told the Court: “We have all discussed it, and all of us keep asking this question: Why wasn’t Powell brought on the stand.” Appellant was entitled to an instruction explaining that his failure • to testify could not be considered as evidence against him, but he specifically requested that the instruction not be given. Furthermore, the jury’s question could easily have been raised by his counsel’s opening statement to the jury that appellant met some .people at the West Memphis dog races who asked him to come to Mena to count the money they were to receive for some guns because they didn’t trust their broker. After the State showed that the dog track was closed during the period involved, the defendant’s theory that he was commissioned only to see that his principals did not get cheated by their broker left many unanswered questions.

POINT .III. The evidence presented by the state is more.tham ample to support a verdict of guilty. In addition to the evidence recited above, another officer testified that appellant admitted in his presence that he did not use a gun on Daniels to take the money because he thought he could talk Daniels out of the money.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the majority opinion. I believe, however, that appellant’s contentions as to Points 1 and 5 are somewhat broader in scope than would appear from the majority opinion.

In his motion for new trial, appellant asserted that there was error in the denial of his "Demurrer-Exception and Second Motion to Quash Information.” As appears from the excerpt of this pleading quoted in the majority opinion, its substance made it, in the alternative, a motion for a further bill of particulars in respect to the particular deficiencies alleged in the pleading. The only such particular upon which appellant now relies was the failure to state the actual ownership of the money alleged to have been taken by him.

Our statute requires that the state, upon request of a defendant, file a bill of particulars setting out the act or acts upon which it relies for a conviction. Ark. Stat. Ann. § 43-1006 (Repl. 1964). This section was a part of Initiated Act No. 3 of 1936. We have recognized that the purpose of this act was to simplify procedures and eliminate technical defenses. See Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304. This act was implemented by Ark. Stat. Ann. §§ 43-804, 805 (Repl. 1964). See Leflar, The Criminal Procedure Reforms of 1936— Twenty Years After, 11 Ark. Law Rev. 117, 129, et seq. This statute specifically requires that a bill of particulars "state the act relied upon by the state in sufficient details as formerly required by an indictment” and only "with sufficient certainty to apprise the defendant of the specific crime with which he is charged, in order to enable him to prepare his defense.” A supplemental bill may be required only if the original one is "not sufficiently definite to apprise the defendant of the specific crime with which he is charged.” Prior to the initiated act, it was only required that an indictment contain the title of the prosecution, the name of the court in which presented, the name of the parties and “a statement of the acts constituting the offense, in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended.” See Crim. Code § 121, C. & M. Dig. § 3028.

It was not error on the part of the trial court to deny a request for a further bill of particulars since the information and the bill of particulars furnished contained all the matters required by the former statute to make a good indictment by grand jury. Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527; Bryant v. State, 208 Ark. 192, 185 S. W. 2d 280; Bennett v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908. The act or acts were certainly stated in the information and bill of particulars in sufficient detail to apprise the defendant of the specific crime with which he was charged to the extent necessary to enable him to prepare his defense. Lee v. State, 229 Ark. 354, 315 S. W. 2d 916. This is all that is required. Appellant does not actually argue that he was unable to prepare his defense. He merely asserts that, lacking the information as to the actual owner of the money, his attorneys could not properly interrogate and exercise challenges of prospective jurors who might have affiliation with such owner. This certainly is not what is contemplated as preparation of his defense in Ark. Stat. Ann. § 43-804. A reversal based upon such a construction would certainly conflict with Ark. Stat. Ann. § 43-1012 (Repl. 1964) which provides that the sufficiency of an indictment shall not be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merit. We have held both before and after the adoption of Ark. Stat. Ann. § 43-804 that the defect must prejudice dedefendant’s right on the merits. See Green v. State, 185 Ark. 1098, 51 S. W. 2d 511; Kansas City Southern Ry. Co. v. State, 194 Ark. 80, 106 S. W. 2d 163; Underdown v. State, 220 Ark. 834, 250 S. W. 2d 131; Edwards v. State, 244 Ark. 1145, 429 S. W. 2d 92. We have gone so far as to hold that even an erroneous allegation as to ownership of property taken did not affect any substantial right of the defendant charged, because the offense was described with such certainty as to identify the act so there could be no doubt about the particular offense charged. Tucker v. State, 194 Ark. 528, 108 S. W. 2d 890. See also Ark. Stat. Ann. §§ 43-1011 and 1014 (Repl. 1964). While the circuit court may well have the discretion to grant a motion for such particulars as those requested by appellant, there is no reversible error in its failure to do so. Silas v. State, 232 Ark. 248, 337 S. W. 2d 644, cert. denied, 365 U. S. 821, 81 S. Ct. 705, 5 L. Ed. 2d 698.

I understand appellant’s third point to be based wholly upon his contention that there was no felonious asportation. He argues that the evidence does not show that he ever had absolute possession of the money, because Daniels’ control of it was never completely severed. This argument is based upon evidence that there were probably five state police officers and five federal officers in the immediate vicinity, that there was aerial observation of Daniels’ meeting with Powell, and that Daniels had a walky-talky radio transmitter in his boot by which he could communicate with the plane conducting the observation and two automobiles manned by United States Treasury Department officials, one of which was at a highway intersection and another at a parking lot nearby. The other officers were alerted by radio message in a few seconds after Daniels discovered that the money had been switched. This argument seems wholly untenable to me. According to the evidence, the money was in Powell’s possession until he was arrested. During that interval Daniels’ possession was totally severed, and Powell was not sufficiently under his control so that the money could be said to be in either possession or control of Daniels.

      The record does not contain the voir dire examination of the jurors. Such questions are often propounded by counsel for defense on voir dire examination. Appellant does not contend that the statement of the Prosecuting Attorney was false.


text:
    ARKANSAS FOUNDRY COMPANY and The Travelers Ins. Co. v. Katherine J. CODY Widow of Wm. R. Cody, deceased
    5-5623
    470 S.W. 2d 812
    Opinion delivered September 27, 1971

      Terral, Rawlings, Matthews ¿r Purtle, for appellants.

      Stubblefield ir Matthews, for appellee.
   Frank Holt, Justice.

The appellee, Katherine Cody, widow of William R. Cody, instituted this action for workmen’s compensation dependency benefits. The Workmen’s Compensation Commission found, with one member dissenting, that Mr. Cody’s death on July 10, 1969 was a result of the work he performed on July 3, 1969 and, therefore, arose out of and in the course of his employment.

For reversal of the circuit court’s affirmance of the Commission’s findings, appellants argue that there is no substantial evidence to sustain the findings of the Commission.

In July 1969 William Cody, 56 years of age, a three-year employee of Arkansas Foundry Company, was on vacation from his duties as a truck driver. He interrupted his vacation on July 3 to return to work for that day. He suffered a heart attack and died July 10, 1969. Mr. Cody’s daily log for July 3 reflects that he was on duty from 6:30 a.m. until 8:30 p.m. During this time he drove his truck to Carlisle, Arkansas arriving around 10 a.m. and unloaded, without the assistance of the customary use of skids, 30 to 35 bundles of shingles weighing approximately 75 pounds each. Cody worked alone for an estimated 20 minutes before Mr. Milligan, the manager of Peterson’s Farms, and his son-in-law arrived to assist in unloading the balance of the 120 bundles of shingles. The son-in-law and Cody carried the balance a distance of 15 to 18 feet to the rear of the enclosed van where Milligan stacked them on the ground nearby. Milligan testified that: July 3 was “one of the hottest days we had,” the unloading was “extremely hard” work; after they completed the unloading, he and Cody “walked up in the shade and talked a little bit” and that Cody was sweating while working and “got plenty hot” but did not complain of having any pain. Milligan said that he and his son-in-law were so hot themselves that they did not pursue their claim that they were 2 or 3 bundles “short.”

After leaving Peterson’s Farms, Cody drove to Brinkley and then to Memphis where his truck was reloaded and then he returned to Little Rock, arriving home around 9 o’clock. Mrs. Cody testified that when he arrived home his clothes were sweaty, his face was flushed, and he complained that he “got as hot as a firecracker down there” and that he just fell into his reclining chair and said that he was suffering pain in his left arm, under his shoulder blade and in his chest; that she rubbed him with Mentholatum Deep Heat; that he had refused to eat dinner; and that he had gone to bed on a rollaway bed in the dining room near the air conditioner. She further testified that it was unusual for him to complain when he came home from work and that this was the “first time he had ever complained with his arms;” that he did not want her to call the doctor and he did nothing but lay around the house on July 4, 5 and 6 which was unusual for Mr. Cody; that on Sunday, July 6, she took his temperature and it was 102 and that on the 7th she called Dr. Ross Bizzell, the family doctor, and was told to bring him in right away. Following this examination, Cody returned home and went back to bed. Thereafter, the only time he left the house was on July 9 when he drove his car to his employer’s office, picked up his check and visited around there for about two hours. To some he appeared healthy and to others he appeared pale and made the complaint that he was not feeling well. One witness testified that Cody told him the doctor had “grounded” him. One of the employer’s managers testified that Cody, who ap-' peared pale, did not complain to him except to say: “I won’t be able to pull the mountain run tomorrow, the doctor said I’ve got to rest,” and said nothing further about returning to work. There was ho evidence that Cody made any complaint to anyone except his wife and stepdaughter on the day of the alleged injury. According to Mrs. Cody, her husband had not suffered from heart disease previously and he had not reported to her that Dr, Bizzell told him: “I had a heart attack.” She stated that he was concerned about the “split-up” between his stepdaughter and her husband. Cody’s stepdaughter corroborated her mother’s testimony about Cody’s appearance on July 3, his subsequent condition and activities. She said Cody told her he had a lot of trouble unloading at his stop in Carlisle and that his arms were hurting him. She then felt that he had suffered a heart attack because the pain in his arms and back were similar to that undergone by her father when he suffered a fatal heart attack. In reply to her insistence that he go to a doctor, Cody said there wasn’t anything wrong with his “ticker.” After seeing the doctor, Cody told her the doctor said that he had pleurisy.

Dr. Bizzell, with 23 years’ experience as a physician, testified that Mr. Cody had been a patient of his for about four years and that prior to July 7, as far as he knew Cody was in excellent health; that Cody had visited his office on July 7th and had told him that: “[H]e had been unloading some heavy shingles and he had had a pain in his chest and down his arms and that he had * * * had to sit down and rest and a couple of fellows had come along and if it hadn’t been for them he couldn’t have finished unloading his truck.” Dr. Bizzell testified that bronchitis could cause chest pain, however, he told Cody that “he was sure that he had suffered an anginal attack and that he should go to the hospital for some EKG’s and further tests.” Other than hospitalization, Dr. Bizzell suggested that Cody “go home and rest.” Dr. Bizzell treated Cody for acute bronchitis, prescribing Declomicin and Emperin No. 3 and bed rest. A copy of Cody’s patient record card dated 7-7-69 was made an exhibit to Dr. Bizzell’s testimony and, as interpreted by him, it reads: “Acute Angina Blood pressure 124/70 pulse 90 temperature 102. Acute Bronchitis, forced to rest on job, given Declomicin.”

As to causal connection between Cody’s work and demise, Dr. Bizzell further testified:

“Well, I believe he was in an enclosed van and the temperature as I did recall — as I did write down that day, was 102 degrees outside. His information to me was that he was supposed to have helpers to unload these and that he had an attack, was forced down, was forced to sit down and rest until some help did arrive. I do believe at this time, due to the circumstances, that certainly I believe it aggravated the — or set off the triggering motion of an anginal or a coronary syndrome. I believe this. * * * Well, as I said before, I believe this — his work, the stress and strain of lifting precipitated the angina attack which further led to a complete occlusion or an extensive thrombosis, later to his death on the 10th.”

He also remarked that bronchitis was often observed in people who had suffered a sudden spasm of the heart. The death certificate shows the cause of death as coronary occlusion, with which Dr. Bizzell agreed.

The appellants presented medical evidence which included the written opinions of four physicians to a hypothetical question. Each of the four opinions negated a finding that there was a causal relationship between the work done by Cody on the third and his death on the tenth. However, the hypothetical question did not indicate that Dr. Bizzell had told Cody that he had suffered an angina attack or that Cody had worked alone for a period of time before help arrived, or that Cody did not work after July 3 until his death July 10. Even so, based upon the hypothetical question as presented, Dr. Kahn, one of these four physicians, stated in his report: “It is my belief that this individual sustained a heart attack while at work performing the usual tasks which truck drivers might do.” Dr. Cullen, appellants’ witness, testified at the hearing that: “If he had chest pains of the kind described on the job and so forth I would say, yes, there was a causal connection.” Dr. Cullen also stated he could not categorically say there would not be a causal relationship between Cody’s work in the absence of evidence of pain prior to his return home for the reason that, contrary to the usual course, there is a possibility of one’s experiencing a “silent coronary,” i. e., without a lot of symptoms at the start.

In reviewing the evidence in workmen’s compensation cases we follow the substantial evidence rule. In Kearby v. Yarbrough Brothers Gin Co., 248 Ark. 1096, 455 S. W. 2d 912 (1970) we said:

“* * * This court has said on more than one occasion that the strongest rule in compensation cases, and the one carrying the greatest weight, is that if there is any substantial evidence to support the findings of the commission, we will not disturb those findings. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489 (1959).”

Further, in Hall v. Pittman Construction Co., 235 Ark. 104, 357 S. W. 2d 263 (1962) we said:

“Under the substantial evidence rule that prevails in a case of this kind the appellant shoulders a heavy burden in seeking a reversal of the commission’s decision upon an issue of fact. In order to succeed the appellant must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission.”

Undoubtedly we would affirm if the Commission’s finding had denied benefits to Mrs. Cody. However, since the Commission resolved the contentions in favor of her, we cannot say that there is no substantial evidence to support the Commission’s award. It is the exclusive function of the Commission to determine the credibility of witnesses and to reconcile any inconsistencies in their testimony in resolving factual issues.

Affirmed.


text:
    Ethel H. HUGHES v. John L. HUGHES
    5-5563
    471 S.W. 2d 355
    Opinion delivered October 4, 1971

      Whetstone ir Whetstone, for appellant.

      Hall, Tucker & Lovell, for appellee.
   Carleton Harris, Chief Justice.

Appellee, John L. Hughes, age 75, a widower for approximately ten years, and Ethel H. Hughes, age 70, appellant herein, were married on June 23, 1967. Nine days prior to the marriage, these parties executed an ante-nuptial agreement, such agreement setting out that each owned real and personal property; that each had children from former marriages, and each agreed that the forthcoming marriage would in no way, alter legal rights to their separate property, nor that of the children to inherit. The agreement was recorded, but six days after the marriage, Hughes executed a will leaving the home to Mrs. Hughes, though there was no such provision in the ante-nuptial agreement. On August 23, 1969, Hughes executed a deed conveying two pieces of commercial property to appellant, and he also executed another deed to the home place creating an estate by the entirety with Mrs. Hughes. After various difficulties, hereinafter mentioned, Mrs. Hughes left the home on Tuesday, April 28, but, as she testified, “I felt like I had maybe made a mistake in my decision to leave; that was my home. I realized I didn’t have a home any longer in Little Rock and I had given all of that up. That was my home; he had said it was my home. I married him to live in it and to live with him and I went back and told him I was back to stay”.

Hughes instituted suit for divorce on the following Monday, May 4, alleging general indignities, and also asserted that the deeds had been obtained by appellant through undue influence and threats, and he prayed that she be required to reconvey to him. Mrs. Hughes answered, denying the allegations of the complaint and asserted that appellee’s daughter, Mrs. Carolyn Davenport, was responsible for the institution of the suit. She admitted the execution of the ante-nuptial agreement but asserted that the terms were inequitable, unfair and unconscionable, and that said agreement should be nullified. After the filing of interrogatories and the taking of discovery depositions, the case proceeded to trial, with each side presenting testimony. At the conclusion, the chancellor, though commenting that the evidence was “slim”, granted appellee an absolute divorce; the court also held that no fraud had been committed relative to the execution of the ante-nuptial agreement, and it was held entirely effective, with the exception of the deeds in which Hughes conveyed commercial property to his wife, and also the deed creating an estate by the entirety. It was pointed out that the evidence had reflected an oral agreement between the parties, supplementing the written instrument, providing that Hughes would either will or convey to Mrs. Hughes some business property and would provide a home for her. The court found that these conveyances were executed voluntarily by appellee. It was further ordered that the joint bank account should be divided equally; that the automobile was joint property and each party held equal interest; the use of the home was awarded to appellant during her lifetime, and would become the property absolutely of the surviving party. Further, appellant was allowed $400.00 per month from the time of the institution of the complaint until the date of the decree, but alimony for the future was denied. An attorneys’ fee in the amount of $2,000.00 was granted counsel for appellant for services rendered. From the decree so entered, appellant brings this appeal. Four points are asserted for reversal, which we proceed to discuss, though not in the order listed by appellant.

It is appropriate to here state that appellee died on August 4, 1971, and his daughter, Carolyn Davenport, was appointed executrix of the will of John L. Hughes on August 9. It was suggested to the Supreme Court by motion that the cause should be revived in the name of Mrs. Davenport as executrix and this motion was granted on September 13, 1971. For convenience, appellee will be referred to throughout the opinion as John L. Hughes.

Appellant asserts that the court erred in holding the ante-nuptial agreement valid, and the initial attack is upon one of the provisions of the agreement (paragraph five) which reads as follows:

“That either party hereto may make disposition of his or her property during his or her lifetime as he or she sees fit; and should this marriage become dissolved by divorce, or by the death of either party, neither party shall hold or claim any part or interest in the estate or property of the other by way of curtesy, dower, homestead, family allowance or other right.”

Appellant contends that the language “should this marriage become dissolved by divorce” invalidates the agreement under the authority of Oliphant v. Oliphant, 177 Ark. 613, 7 S. W. 2d 783, where this court held that an ante-nuptial contract, to be valid, must be entered into in good faith, i. e., at the time of marriage the parties intend to live together until they are separated by death, and stated:

“But an antenuptial agreement in which the parties, or either of them, at the time of entering into such agreement and at the time of their marriage, intend such disposition of the property as is agreed upon only in case there would be a divorce, is void and unenforceable, because such contract is against public policy. * * * * If such an agreement is made in contemplation, at the time of its execution, that the parties, or either of them, expect to be divorced, then such an agreement is void ab initio.”

We do not agree that the provision in the instant case invalidates the contract. The entire paragraph, heretofore quoted, seems designed to cover all contingencies, i. e., it is a “Mother Hubbard” provision. It will be noted that it also refers to the death of either party and the Oliphant language clearly says that an ante-nuptial agreement is void and unenforceable if it was entered into by the parties to become effective “only in case there should be a divorce”. As stated, that is not the situation here, nor is there any indication in the evidence that at the time the agreement was executed, the parties, or either of them, expected the marriage to be dissolved by divorce.

Nor do we agree that the circumstances surrounding the execution of the agreement were such as to invalidate its provisions. In Davis v. Davis, 196 Ark. 57, 116 S. W. 2d 607, and Wylie v. Wylie, 249 Ark. 316, 459 S. W. 2d 127, the requirements for a valid ante-nuptial agreement were set forth. This court said that generally speaking, such an agreement must be freely entered into by the parties, must not be unjust or inequitable and must not be tained with fraud. In Wylie, we said:

“The burden here was, therefore, upon appellants to prove, by satisfactory evidence, that appellee had knowledge of the character and extent of her husband’s property, and of the provisions and effect of this instrument, or, at all events, that the circumstances were such that she reasonably ought to have had such knowledge at the time this instrument was executed [Emphasis supplied].”

It is absolutely clear from the evidence that in the case before us the agreement was freely entered into. In her discovery deposition, appellant testified that she read the agreement, and understood it and when asked about the provisions separately, replied, not once, but several times, that she fully understood all provisions, stating, “I agreed to everything in there”. She said that Judge Hughes had told her that he would make a will after they were married, giving her the house and two pieces of commercial property; accordingly, she said, “So it was alright with me”. Mrs. Hughes stated that the agreement was shown to her about two weeks before she signed it and that she had an opportunity to take it to a lawyer. In testifying before the court, appellant stated “I was not too interested in his holdings at that time. I was interested in a nice life with what we had to live the rest of our lives. We didn’t have much time and I was not concerned with the value of his property.” She mentioned several properties that she owned at the time of the marriage, and stated that she had no intention of her husband acquiring any interest in these properties when the agreement was signed. She added “He wasn’t interested in acquiring any interest”.

Likewise, there is no evidence whatsoever of fraud. In Wylie v. Wylie supra, we said:

“Without any hesitation whatsoever, we hold that the evidence is more than ample to support the view taken by the trial court, viz, that the value of Mr. Wylie’s properties, and his financial status, were far in excess of the figures given to the present Mrs. Wylie at the time the antenuptial agreement was entered into; that she had no knowledge to the contrary and fully depended upon the statement of her husband-to-be in consenting to enter into the agreement.”

Here, there is no contention that Hughes set a value upon his properties which was less than its actual value; in fact, there is no testimony that property values were even discussed by the parties. Appellee’s testimony was that he did not know the value of his holdings, and the evidence throughout indicates this to be a true statement. It also appears from the record that due to age and ill health, Judge Hughes was not as mentally alert as formerly. At any rate, there certainly is no evidence of designed concealment of his financial worth, nor of fraud in any respect.

The only legal basis for the attack on the agreement lies in the fact that it might be said that the provisions for the intended wife were disproportionate to the means of the intended husband. Wesley Adams, a real estate appraiser in North Little Rock, placed the value of the Hughes properties at between $350,000 and $400,000. Appellant argues that under the terms of the agreement, she was to receive nothing, it being argued by her counsel that the deed to the home and the two commercial properties were only “gifts”, but we do not subscribe to that view. Some of the answers of Judge Hughes on this point were evasive; for instance, when asked if he had told her that he would give her a home and also a “piece of business property”, he responded “I don’t know what I told her. That has been about four years ago”. From the record:

“Q. Is it possible that you told her that?
A. I told her — I don’t know.”

We think the preponderance of the testimony clearly establishes that this oral agreement was reached, and was thus a part of the over-all agreement between the parties, one pertinent fact being that appellee did execute a will less than a week after the marriage leaving the home to appellant. Subsequently, as heretofore stated, this property was conveyed to the parties as an estate by the entirety and two business properties were conveyed to appellant. It appears that the value of the home place is $25,000 to $40,000, and the value of the two commercial properties (Edwards’ Cafe and Darnell’s Jewelry Store) about $25,000. These last two yield a rental of $225.00 per month. Though appellee prayed for the recovery of these properties in his complaint, the court found that appellant was entitled to them, and there has been no cross-appeal. So — Mrs. Hughes did not leave the three year marriage empty handed; to the contrary, she received properties of an approximate value of $50,000 to $65,000.

Probably more important than the matters already mentioned is the fact that appellant was an experienced real estate broker, had used several attorneys in past years, and had formerly lived in Benton. As to knowledge of the property owned by Judge Hughes, appellant, at the time the agreement was entered into, knew that he owned a home in Rivercliff (in which she is living, having acquired this property as the surviving spouse under the tenancy by entirety), knew that he owned another old home (in which his sister now lives), knew that he owned several business properties, and knew that he owned farm property (but did not know about the timber). In fact, it appears that she was familiar with most of his holdings, though she stated that she was not familiar with the value of these properties. The record reflects that she had been active in the real estate business for approximately 25 years, and had worked quite awhile for Fausett 8c Company in Little Rock. She showed and sold real estate, and had held a broker’s license for at least 15 years. To obtain this license, it was necessary that she take an examination and answer questions concerning real estate transactions. She had worked in Benton, Arkansas, as a nurse for several years prior to 1923. Hughes was a prominent citizen of the community, his great-grandfather having laid out the town of Benton, and most of the Hughes property had been in the Hughes family for a long number of years. Mrs. Hughes had known appellee before the death of his first wife, the first wife having died some nine years prior to his marriage to appellant. The testimony reflected that the parties had subsequently dated for several years, and had regularly dated for about a year, before their marriage. The record also shows that appellant had consulted attorneys on at least half a dozen occasions, and was thus familiar with the services afforded by lawyers. Yet, though aware of most of the properties owned by appellee, and though trained in the field of real estate — and though having had the opportunity to have the agreement examined by an attorney— and though knowing different attorneys, appellant executed the agreement, stating several times that she was not concerned about the value of his property, and was entirely satisfied upon his promise to leave the home to her and convey to her the two business properties. It therefore appears that the circumstances were such that Mrs. Hughes could reasonably have had, or acquired, a knowledge of the value of the properties before the agreement was executed; this being true, the agreement having been freely entered into, and no fraud being shown, we hold that this point is without merit.

We agree with appellant that the evidence does not justify the granting of a divorce. Appellee’s proof consisted of his testimony that Mrs. Hughes had “nagged” him to convey property to her; that she had threatened to send him to a nursing home; that she had taken from the lockbox a dinner ring which he had given his first wife, a sack of gold coins (having a face value of over $100.00), had withdrawn $3,000.00 from their joint account in the bank, and had misrepresented the price of an automobile that he purchased for her. It was also charged that on his second trip to Miami for a medical checkup, where he remained for six weeks, Mrs. Hughes never wrote or inquired about his welfare. As to the first allegation, there was no corroboration though Mr. S. C. Bundy, a witness in behalf of appellee, testified that appellant mentioned to him several times that Hughes should deed her some property. With respect to the second contention mentioned, there was no corroboration. Mrs. Hughes admitted taking the ring, the coins, and withdrawing the $3,000.00. Appellant stated that she took the ring because she was hurt and angry, Hughes having told her he could not afford to give her an engagement ring; she stated the money and coins were "insurance” because he had not made provision for her and she felt insecure, fearful that his daughter would prevail upon Hughes to “cut off” the bank account. She testified that this last actually did subsequently happen.

There was no corroboration of the charge relative to the purchase of the automobile, and Mrs. Hughes stated that appellee helped pick out the car and that she wrote a check for the difference in his presence. Appellant said that at his suggestion, she did not go to Miami. The evidence reflects that he called her over the phone, wrote her at least twice, and sent an Easter card, and his daughter wrote a letter advising of his condition. Apparently Judge Hughes did not feel neglected or mistreated by her failure to be present; the letters written were friendly and affectionate, and upon his return from Miami, he brought appellant a handbag and treated her with affection.

The record is replete with evidence of the care given appellee by appellant during the marriage. Judge Hughes was first operated on for the removal of a tumor from his colon in May, 1969, and he remained in the hospital for several weeks, appellant staying in Miami with him. After returning to Benton, appellee suffered a setback and spent a month in the Missouri Pacific Hospital in Little Rock. Appellee admitted that appellant had been kind to him, had nursed him, had changed the dressings where he had a drainage of pus for a period of approximately nine months, had bathed him, had cleaned him up after bowel movements, had chauffeured him to doctors, and even cut up the food on his plate. Appellant testified that the drainage was quite severe and that many changes of clothing were necessary; that at one time there were as many as five changes per day of clothes and pajamas. It was also necessary that she attend him each time he urinated. From the record:

“Q. Well, was this the time or another time he would have to be waited on about the catheter?
A. Well, that was — he came home from the hospital with the catheter in.
Q. From Little Rock?
A. Yes, from the hospital.
Q. Would you have to attend him each time he urinated?
A. Well, I did because he couldn’t clip it off and couldn’t clip it on. When he got ready to go I had to go with him. When I attached the bag to it he disliked carrying a bag around with people seeing it so he would just clip the catheter off so each time he had to go to the bathroom then I had to go with him.”

This involved going to public toilets:

“Well, I would just go stand outside the men’s toilet and if somebody be going in there I asked if anybody in there, I would like to go see about my husband.”

Appellant stated that this happened numerous times when they went out to eat, or when they would go to the doctor’s office. Mr. Bundy, who was appellee’s sole witness besides the daughter, admitted that he had gotten up before the Sunday School class eight days before the suit was filed seeking help for Mrs. Hughes in looking after her husband. He added “She is a lady of about 71 or 72 and I imagine it is hard for a lady that age to take care of anyone so I was trying to help both of them”.

It definitely appears that appellee was in a good humor with appellant when he wrote the affectionate letters from Miami and returned home with the bag as a present. His daughter returned with him, and two days later (Tuesday) after some unfriendly conversation between the daughter and appellant, Mrs. Hughes left the home but returned on Friday. The following Monday Hughes instituted the suit.

From reading the record, it appears that difficulties commenced when Mrs. Davenport learned her father had deeded property that had been in the Hughes family for years to his wife, and the daughter admitted that she felt that Hughes property should stay in the Hughes family; that appellant was not entitled to receive these properties. This feeling of a daughter of his first marriage is understandable, but it appears that it contributed to the failure of the marriage under discussion. There is no evidence of quarrels between the parties, and numerous witnesses testified relative to the kind and considerate treatment of Hughes by appellant.

We do not think that the related facts establish that appellant offered such indignities to the person of appellee as to render his condition intolerable. The chancellor himself commented that the grounds for divorce were “very slim” and “strictly on the border line”.

In accordance with what has been said, we affirm the chancellor’s holdings that the ante-nuptial agreement was valid; however, we hold that grounds for divorce were not established and that portion of the decree granting the divorce is hereby annulled and set aside. This means that appellant is entitled to maintenance from the date of the divorce decree to the date of appellee’s death.

For his third point, counsel argues that the attorney’s fee allowed him as appellant’s attorney was inadequate, but we are unable to say that, in setting this fee, the chancellor abused his discretion. Appellant’s fourth point is only an alternative prayer and need not be discussed.

During the pendency of the action, the court had ordered maintenance for appellant in the amount of $400.00 per month, and this amount appears entirely reasonable. Since appellee is not entitled to a divorce, the case is remanded with directions to award appellant the sum of $400.00 per month as support and maintenance, during the period between the entry of the divorce decree (December 3, 1970) and the date of appellee’s death (August 4, 1971). In all other respects the decree is affirmed.

Counsel for appellant is awarded an additional attorney’s fee of $2,000.00 for services rendered in this court.

Fogleman, J., not participating.

      This finding is not now at issue, no cross-appeal having been filed.

      laThe evidence reflects that income from her own properties and social security benefits give Mrs. Hughes an approximate total net income of $500.00 per month.

      A car owned by Mrs. Hughes prior to the marriage was traded in on an automobile, and appellee stated that appellant told him that an additional {900.00 would have to be paid, whereas {2,500.00 was required.

      She said Hughes told her to take the coins. The $3,000 was charged to her share of the joint bank account by the chancellor.

      The court found that Hughes did close out the account in the latter part of April, 1970.

      Ark. Stat. Ann. §34-1202 (Supp. 1969).