text:
    M. P. HATHCOCK v STATE of Arkansas
    CR 74-41
    510 S.W. 2d 276
    Opinion delivered June 10, 1974

      Giles Dearing, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, M. P. Hathcock, was charged with first degree murder, the victim being Hugh Robinson, Jr. The alleged offense occurred on May 3, 1973, and the trial was conducted on September 12, 1973. The jury returned a verdict of voluntary manslaughter and Hathcock was sentenced to six years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, appellant lists six asserted errors which we proceed to discuss.

It is first alleged that the opening statement to the jury by the prosecuting attorney did not set forth facts sufficient to constitute a crime committed by appellant, but constituted only a subtle injection of irrelevant facts creating prejudice against appellant. The opening statement of the prosecuting attorney appears in the record and we do not agree with appellant’s contention. Be that as it may, no objection was made to anything said and the point accordingly, even if it contained merit, could not be considered as prejudicial error.

It is next asserted that the verdict is contrary to the evidence, which is another way of saying that no substantial evidence was offered to support the verdict. We disagree. The proof reflected that Robinson operated a little repair shop, repairing such items as radios, lawnmowers, washing machines, etc. On the date in question, James Cole, who lived in the neighborhood, testified that he saw Robinson and Hathcock talking in front of Robinson’s shop building. He said they were talking about a lawnmower, Robinson telling Hathcock that he had put a new crankshaft and parts on the lawnmower and that Hathcock would not “get it” (the lawnmower) until he paid for the parts. He said he heard Robinson say, “You s-o-b kicked me” and went into his shop.'The witness testified that Hathcock went right in behind him. Cole heard a “pop” and Hathcock came back out of the shop “with one hand in his pocket”, walked on past Cole’s house and got into his truck. Cole said that he kept watching for Robinson to come out, but the latter did not show up. The witness entered the shop, the first person to do so, and found Robinson lying “about middle-ways of the shop”. Cole said that Robinson was “gagging like something choking him inside”; that he had a wound on his lip as though something had passed through it; his mouth was cracked and two of his teeth were knocked out. While he was there, an officer arrived and subsequently an ambulance came. According to Cole, Robinson was lying on the floor facing the front of the building and had a screwdriver in his left hand. He said that Robinson had this screwdriver in his hand at the time he went into the shop building.

Gloria Richardson, who lived across the street from the Robinson home, testified that she saw Robinson and Hathcock in the yard by the workshop, but could not hear them talking; she did observe them making gestures at each other. The witness said that she went home and was preparing a meal for her children when she heard a shot and saw Hathcock come out of the yeard and get into his truck. Other witnesses testified but none saw the shooting or elaborated on the facts already set out. Henry Williams, a deputy sheriff, testified that he received a radio report of the shooting,and, together with Trooper John West, went to the Hathcock residence. When Mrs. Hathcock admitted the officers, Williams observed appellany laying a pistol on the table. The pistol was loaded with four rounds and one spent round in the chamber. Hathcock said, “That is the gun I used.” The officer then arrested appellant and placed him in the car, at which time Hathcock started talking about the shooting. Hathcock said that Robinson frequently tried to start trouble with him, “Every time I drove down the road that s-o-b tried to start trouble with me.” The officer said that Hathcock also stated “He come at me with an ice pick”, but that before the car reached the courthouse, Hathcock “had changed the ice pick to a screwdriver. He said, ‘I shot the s-o-b because he gave me a lot of trouble.’ ” The officer said that he asked Hathcock no questions and that appellant was talking of his own accord.

Hathcock, 61 years of age, testified that he operated a trading post at his residence and that he had known Robinson about eight years; that on the day of the shooting, a pistol was returned to him from a man named Lonnie Tucker to whom Hathcock had a few days earlier sold the pistol. Tucker told appellant the pistol would not fire and Hathcock let him have another one in exchange for it, but said that he (Hathcock) took the pistol returned by Tucker with him— “going to take it with me to the ditch and try to shoot it, and if it would not, ship it back to the west coast where it come from.” He said that he went to see a woman customer to collect, it being the third day of the month and she would have her Social Security check. He drove in his truck to the customer’s home, and after stopping there, started out to the ditch, but Robinson flagged him down. They then discussed some articles (lawnmowers and radios) which Robinson had apparently purchased from Hathcock, and according to appellant, he went into the building at the invitation of Robinson. The latter told him that he had paid too much to Hathcock for the radio and appellant said, “I’ve got to go. I am in a hurry.” He said that he took a couple of steps and heard Robinson say, “I have been wanting to do this for a long time”; Robinson pushed him into the wall, had a screwdriver in his hand and stated, “I am going to kill you.” Hathcock said, “He started down, and that is when I pulled the gun and fired one time.” From the evidence, the jury could have found that heated words were spoken by Robinson to appellant, but that Robinson walked away from Hathcock and went into his shop, appellant, armed with a pistol, immediately following; jury members could well have considered that only a short period of time elapsed (according to Cole, about 10 seconds) before the shot was fired and that there was insufficient time for the conversations detailed by appellant to have occurred before the shooting; i.e., appellant, angered by the conversation outside the shop, went immediately into the building and fired the shot. There was also testimony by the State that there were two exits to the shop, indicating that appellant could have retreated from any alleged assault, and also evidence that the parties were farther away from each other than stated by Hathcock. The jury is the fact-finder. It heard, and saw, the witnesses testify and it was the unquestioned prerogative of this body to determine exactly what happened. The jury could even have found circumstances such as existed in Bruder v. State, 110 Ark. 402, 161 S.W. 1067, where we said:

“This court has held that where a jury believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter.”

We conclude that the evidence was sufficient to support the conviction for manslaughter.

Under his third point, viz, that the verdict was against the law, appellant devotes only one paragraph. Under the statutory definition of manslaughter, Ark. Stat.. Ann. § 41-2207 (Repl. 1964) and voluntary manslaughter, Ark. Stat. Ann. § 41-2208, the evidence was substantial to support the conviction. See also Bruder v. State, supra, and Burton v. State, 254 Ark. 673, 495 S.W. 2d 841.

It is alleged that the court erred in permitting a tape taken in the office of the sheriff while appellant was in custody, to be read in evidence. The purpose of playing the tape was to show that appellant had previously made statements inconsistent with the testimony he rendered on trial. It is asserted only that error was committed because the sheriff did not advise Hathcock that he had the right to have his attorney present when the tape was made. There is no contention that the tape constituted a confession and the State argues that the purpose in offering same was limited to an attack upon appellant’s credibility since the version of his participation in the killing of Robinson was favorable to himself. At any rate, we cannot consider the contention since no objection was made at any time to the playing of the tape.

It is contended that the court erred in permitting certain pictures to be shown to the jury over appellant’s objection. The photographer identified seven photographs that he had taken and the State offered these as exhibits. Appellant objected and after a conference between court and counsel out of hearing of the jury, and which was not taken by the reporter, the court announced that it was going to admit five of the photographs into evidence, and that it was withdrawing two photographs which would not be admitted. Counsel for appellant was then asked, “Any objection to those five?”, to which counsel answered, “No - sir.” In the argument, appellant states that all seven of the pictures were seen and carefully examined by the jury before the court asked to see them, but there is nothing in the record to indicate that this happened. We, of course, determine these questions on the basis of the record, which here only reflects that there was no objection to the pictures which were admitted into evidence. No further discussion is therefore necessary, but it might be stated that we have held on numerous occasions that the admission of photographs of a deceased rests in the sound discretion of the trial court, and, of course, we do not reverse unless it is shown that such court abused its discretion. Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72, and cases cited therein. Certainly, after viewing the exhibits complained about, we could not say that the trial court abused its discretion.

Finally, it is urged that the court erred in refusing to declare a mistrial because of the prosecuting attorney’s questions to appellant relative to his business deals with the public in general, appellant asserting that such questions constituted an attack upon appellant’s reputation. We find no merit in this contention. Hathcock took the stand and was asked on direct examination what business he was engaged in. He replied that he operated a trading post “as a hobby”, gave the location, and stated that he also lived there. He was then asked if he had known Robinson and if he had business relations with Robinson in the past. Appellant answered that he had known Robinson for around 8 years and that their business relationship had been pleasant, “He was probably on my books most of the time in that 8 years.”

On cross-examination, the prosecutor asked if Hathcock sold T-V’s and radios and the witness also mentioned other items and “what have you.” He was then asked if the bulk of his business was with black people, to which question he answered in the negative. Counsel objected that the prosecuting attorney had no right to interrogate about business transactions and that such would be an attack upon appellant’s reputation. The State responded that the questioning had been opened up by the defense in asking Hathcock the business he was engaged in, and the court permitted the cross-examination to proceed. He was asked if he loaned money at 25%, to which Hathcock replied, “That is a false statement somebody is rumoring around.” Counsel for appellant again objected and likewise objected to the question as to whether Hathcock bought used property for the purpose of reselling it. Counsel for appellant asked to make a record out of the presence of the jury and this request was granted. It was contended that the questions had nothing to do with the charge, and were asked for the purpose of prejudicing the jury. A mistrial was requested, but the court stated that it would permit questioning of the witness as to business relationships and dealings with the deceased, but would not permit the prosecuting attorney to explore business relationships with regard to other matters not related to the particular matter before the court; that the cross-examination would be restricted to only those matters that would touch on the credibility of the witness and it would not permit any evidence relative to the reputation of the defendant. With regard to the public generally, the objection would be sustained. This ruling apparently satisfied counsel for appellant, for he stated, “May I clarify this? The defense has no objection to the State exploring any of his business relationships with the deceased. We object only with his business generally.” The court then replied, “With regard to the public generally, the objection will be sustained.” As stated, there was no further motion for mistrial nor objection to this phase of the questioning.

Let it first be said that this court has consistently permitted a wide scope of inquiry through cross-examination, and in Vaughn v. State, 252 Ark. 260, 478 S.W. 2d 759, we pointed out that “It is proper to cross-examine a witness about his ‘residence, habits, antecedents and associations.’ ” The defense did open up the matter in asking what type of business Hathcock was engaged in, and in fact, testimony of Hathcock himself indicated business disagreements._

As previously stated, the court sustained counsel’s objection to questions which counsel contended related to reputation, and he was apparently satisfied. Of course, the granting of a mistrial is an extraordinary action and this motion should only be granted where it is obvious that any possible prejudice cannot be removed by an admonition. No admonition was here requested. In Martin v. Lansley, 252 Ark. 121, 477 S.W. 2d 473, a motion for mistrial was made which was denied by the trial court. We affirmed the judgment, stating:

“The record shows that a number of appellee’s records were lost Tn the fire. Appellee gathered up what he could. Immediately preceding the objection above appellee had stated that he did not review his invoices he found but merely turned them over to his lawyer. Admittedly the trial court has wide discretion in determining action appropriate to eliminate prejudicial effects of remarks of counsel and will not be reversed except for a manifest abuse thereof. [Citing case]. From the record here presented, we cannot say that the trial court erred in refusing the motion for mistrial.”

It seems apparent that the questions asked at the outset by the prosecutor did not produce any passion or prejudice on the part of the jury for here was a defendant, charged with first degree murder, wherein he would have, upon conviction, been sentenced to life imprisonment, or upon a conviction of second degree murder, could have been sentenced to 21 years imprisonment. The jury, however, apparently accepted his version of why he had the pistol with him on the occasion of Robinson’s death, and found him guilty only of manslaughter.

We find no reversible error.

Affirmed.

FOGLEMAN, J., not participating.

       The coroner’s report stated that death was due to asphyxiation secondary to aspiration of blood due to the gunshot wound as described.

       There is no contention tor reversal based on Hathcock’s statements to the officer in the car relative to the fact that he was not warned of his constitutional rights at that time. See Miranda v. Arizona, 384 U.S. 436 (1966).

       Hathcock had apparently sold some lawnmowers and a radio to Robinson, these items being in Robinson’s shop at the time the two men went into the building. From the testimony of Hathcock relative to what happened after they walked into the Robinson shop:
      “A. He [Robinson] said ‘How much do you want for that lawnmower?’ I said
      ‘That one SI 0.00’. He said ‘How much for that one?’ And I said ‘That is still $10.00’, and he said ‘How much do you want for that one over there?’, and I said ‘$10.00 apiece.’ That is all I said. He said T put a new crankshaft in this one over here.’ I said I would make that good if I had to. ***
      A. He said ‘How mucn do you want for this radio?’ 1 said ‘$10.00’. He said ‘That is too much.’
      Q. What reply if any, did you make?
      A. I said ‘If you think that is too much, I will be glad to take tjhem back because you haven’t paid for them. I will be glad to get them off the book.’ ”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Henry W. LILES et ux
    74-48
    510 S.W. 2d 275
    Opinion delivered June 10, 1974

      Thomas B. Keys and Billy Pease, for appellant.

      Boyett & Morgan, P.A., for appellees.
   George Rose Smith, Justice.

The highway department, in appealing from a verdict and judgment fixing the landowners’ compensation in a condemnation case, makes two arguments for reversal.

First, the landowners’ attorney, in his opening statement to the jury, apparently made some reference to the fact that a prospective purchaser of the land might consider the noise and fumes emanating from the highway. The court overruled opposing counsel’s objection to the statement. We find no error, for a number of reasons: It is not clear from the record just what was said. There was no request that the jury be admonished not to consider the remark. The court instructed the jury, in AMI 101, that the opening statements of counsel were not evidence. The court also explained the measure of damages to the jury, in instructions which could not be construed to include the matters that may have been touched upon in the remark now complained of.

Secondly, the jury’s verdict for $2,501 was in the precise amount fixed by the landowners’ expert witness. That witness cited two comparable sales, one at $300 an acre and the other at $225 an acre. He used only the higher figure in arriving at his assessment of the damages. The appellant argues that the witness should have selected some intermediate point between the two figures in reaching his conclusion. No doubt that argument was made to the jury, but we certainly cannot say that an opinion based upon one comparable sale falls short of being substantial evidence. Ark. State Highway Commn. v. Alvin Samuel Gin Co., 256 Ark. 669, 510 S.W. 2d 65 (1974).

Affirmed.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice,

text:
    John R. MOSELEY v. STATE Of Arkansas
    CR 74-21
    510 S.W. 2d 298
    Opinion delivered June 10, 1974

      James R. Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The Pulaski County grand jury returned two indictments against the appellant, John R. Moseley. The first charged Moseley with an illegal sale of drugs; the second charged him with perjury in his testimony before the grand jury. Separate trials, one to a jury and the other to the court, resulted in convictions and concurrent 10-year sentences. The principal issue here is whether the trial court should have quashed the indictments on the ground that Police Lieutenant W.E. Simpson was present when Moseley’s testimony was taken by the grand jury.

According to the testimony of the foreman of the grand jury, Lieutenant Simpson had for some time worked jointly and closely with the grand jury’s drug committee in investigating Moseley’s alleged sale of drugs, one such sale being involved. The grand jury itself had devoted part of six or eight of its sessions to that particular investigation before Moseley himself appeared as a witness. A number of witnesses had already testified, including Lieutenant Simpson.

When Moseley testified before the grand jury Lieutenant Simpson was present and participated in the interrogation. The foreman stated that he conferred with Simpson while conducting the examination and that he motioned to Simpson once or twice to suggest that he propound questions to Moseley. A court clerk was also present, but the record indicates that neither the prosecuting attorney nor any of his deputies were present when Moseley testified. No one except the members of the grand jury remained in the room when the jurors entered upon their deliberations and voted upon the two charges.

Lieutenant Simpson’s presence during the taking of Moseley’s testimony was undeniably a violation of the statute, which provides: “No person except the prosecuting attorney, and the witnesses under examination, are permitted to be present while the grand jury are examining a charge, and no person whatever shall be present while the grand jury are deliberating or voting on a charge.” Ark. Stat. Ann. § 43-919 (Repl. 1964). The questions here are whether Officer Simpson’s unauthorized presence was prejudicial and, if so, whether Moseley waived the error by consenting to it.

The State relies upon several of our cases holding that the presence of some third person in the grand jury room was not prejudicial. Our leading case is Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896), where an attorney went into the grand jury room with the prosecutor’s consent and acted for him in examining witnesses. We found no prejudice, stressing the fact that the attorney acted in the prosecutor’s stead and said nothing to influence the jury’s finding. Even so, we emphasized the need for compliance with the statute, saying: “The importance of this provision cannot be overestimated, when we consider that the ‘secrecy of the grand jury room, and the privity and impartiality of that inquest,’ may prevent the presentment of any one ‘through envy, hatred, or malice.’ ” Our later cases add nothing to the reasoning in Bennett: Richards v. State, 108 Ark. 87, 157 S.W. 141, Ann. Cas. 1915E, 231 (1913); Tiner v. State, 109 Ark. 138, 158 S.W. 1087 (1913); Coon v. State, 109 Ark. 346, 160 S.W. 226 (1913); Bennett v. State, 161 Ark. 496, 257 S.W. 372 (1923).

Those cases, however, do not touch upon the possibility of prejudice that exists in the case at bar. The statute contemplates that the prosecuting attorney will assist the grand jury, his knowledge of law and of the elements of a prima facie case being essential to the jurors’ understanding of their duties. The prosecuting attorney, however, does not appear before the grand jury as a partisan, bent upon obtaining an indictment. In the actual trial of criminal cases it is as much the prosecutor’s duty to protect the innocent as to convict the guilty. Adams v. State, 229 Ark. 777, 318 S.W. 2d 599 (1958). It would be illogical and unwise for him to act in a less disinterested manner in his role as advisor to the grand jury. Consequently, no prejudice is shown when another attorney acts for the prosecutor and, as we stated in the first Bennett case, says nothing to influence the finding of the grand jury.

Here the situation is markedly different. Lieutenant Simpson, a law enforcement officer, had been actively in charge of the investigation that led to the indictment. He had testified as a witness before the grand jury. He participated in the interrogation of Moseley. Unlike the prosecuting attorney, Lieutenant Simpson had no reason to be impartial in the matter and could hardly have been impartial. In such a situation the cases are unanimous, as far as we can find, in holding that the indictment should be quashed. United States v. Carper, 116 F. Supp. 817 (D.C.D.C., 1953); United States v. Edgerton, 80 Fed. 374 (D.C. Mont., 1897); Culbreath v. State, 22 Ala. App. 143, 113 So. 465 (1927); Herrington v. State, 98 Miss. 410, 53 So. 783 (1911). We agree with the court’s declaration in the Edgerton case, supra: “There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194 [1876], there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury?”

There remains the possibility that Moseley waived the violation of the statute by consenting to it. According to the transcript of Moseley’s testimony before the grand jury, he first took the oath and stated his name, address, and occupation. The foreman then said: “As you probably know, this Pulaski County Grand Jury is in official session today. We have with us members of the Grand Jury plus Mrs. Smith of the Fourth Court and Lieutenant Simpson with the Little Rock Police Department. Do you waive their presence here today? Do you have any objection?” Moseley replied: “No. No. I have no objections.” Moseley’s interrogation then took place.

We cannot conscientiously say that Moseley waived the violation of the statute. A waiver is an intentional relinquishment of a known right. Lemm v. Sparks, 230 Ark. 105, 321 S.W. 2d 388 (1959). There is nothing in the record to suggest that Moseley was fully aware of his rights. He was not accompanied by an attorney; the statute denies him that assistance in the grand jury room. There is no indication that he had had any previous experience with a criminal prosecution. (He had been the chief pharmacist for a veterans’ hospital for 22 years, earning an annual salary of $22,980 when he is alleged to have sold amphetamine tablets for $10.) One supposes that Moseley would be nervous as a result of having been called before the grand jury in a criminal investigation of his conduct. His attitude would naturally be one of ready compliance with the foreman’s suggestions.

As a layman, Moseley had no reason to know that Lieutenant Simpson’s presence was a violation of law, potentially prejudicial to Moseley, and certainly had no reason to know that Simpson would interrogate him. The foreman apparently understood the situation, but he failed to explain the witness's rights. Had the prosecuting attorney or a deputy been present, an explanation might have been forthcoming, but seemingly the prosecutor’s place was being taken by Lieutenant Simpson, who was actually Moseley’s chief adversary. In the circumstances we cannot say that Moseley voluntarily and intentionally relinquished a known right.

Reversed and remanded, the indictments to be quashed.

Carleton Harris, Chief Justice,

dissenting. I disagree with the majority that this case should be reversed, for, in my opinion, Moseley waived any violation of the statute by consenting to the presence of Lieutenant Simpson. The majority opinion sets out the statement of the Grand Jury Foreman, together with the response of Mr. Moseley, and this exchange between the foreman and appellant took place at the outset of the proceedings.

This is not a case of one who is without formal education waiving a right; to the contrary, Mr. Moseley was a college graduate. Nor is it a situation where one who, because of extreme youth, would be unknowledgeable of the meaning of a waiver. Mr. Moseley was approximately 56 years of age at the time he appeared before the Grand Jury. Now, I submit that Mr. Moseley, an adult with a college education, when asked if he waived the presence of the police officer, was aware, by the very question asked by the foreman, that he had a right to prevent the presence of that police officer.

I would affirm the judgment.


author: Lyle Brown, Justice.

text:
    John W. MOSES v. Landon B. KIRTLEY
    74-37
    510 S.W. 2d 281
    Opinion delivered June 10, 1974

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      Cambiam & Cree, for appellee.
   Lyle Brown, Justice.

As a result of a traffic mishap between cars driven by the parties to this litigation appellee was awarded judgment for $8000. The sole issue raised on appeal is the excessiveness of the verdict.

On October 7, 1972, appellee was driving his small bus from a rural community store to his home. Appellant, approaching from the rear, struck appellee’s bus with considerable force. Appellant’s car left the road, went through a fence, and knocked down a small cedar tree. Appellee’s bus seat was mounted on a base and the impact knocked the seat backward some six inches. Appellee suffered pain in his neck and his wife took him to the emergency room of the hospital in Morrilton around 9:00 p.m. where he was seen by Dr. White. X-rays were taken and appellee was given some pain pills and went home. That was Saturday night. He went to his regular work on Monday but had to lay off Tuesday and Wednesday because of stiffness in the neck. He testified he has continuously taken aspirin and anacin for pain. He also returned to Dr. White’s office twice for injections for pain. Appellee introduced bills covering medical expenses amounting to $118.70 and a car repair estimate of $620.

Appellee’s wife testified that since the accident appellee has constantly complained of pain in the neck. “He doesn’t sleep well at night. He tosses and turns and gets up. I would say not one night out of the week he misses taking aspirin or something for pain.”

Dr. White examined and x-rayed appellee’s neck on the night of the accident. The doctor concluded that the patient “had suffered a twisting type injury, so-called whiplash injury. The cause of such is a sudden jerk to the neck.” The doctor next saw appellee on October 11 and at that time appellant’s neck was stiff. “The muscle spasm was less and I thought he had improved and I dismissed him at that time with some type of estimate with what it would take for this thing to heal, because I thought it would heal in six to twelve weeks.” He was referring to the muscle spasm in the neck. The doctor next saw appellee on June 25, 1973. “I found at that particular time he did have a good range of motion in his neck, and he didn’t have any muscle spasm, at least significant muscle spasm.” Notwithstanding, appellee still complained of pain. Aspirin and heat were prescribed. The doctor did not see appellee professionally after June 25. With respect to the complained of recurrence of headaches, notwithstanding the doctor’s negative finding on June 25, the doctor said intermittent pain sometimes recurs. “You think it will end and they crank back up again.”

We have many times said that precedents in cases of this kind are of scant value. That is because no two cases are identical; essential points of difference are usually apparent. Fred’s Dollar Store v. Adams, 238 Ark. 468, 382 S.W. 2d 592 (1964). Furthermore, the dollar no longer has its prior value. Clark County Lumber Co. v. Collins, 249 Ark. 465, 459 S.W. 2d 800 (1970). In determining whether a jury verdict is excessive die question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Collins, supra. We give the evidence its highest probative force in favor of the verdict and decide whether there is any substantial evidence to sustain the verdict. Breitenberg v. Parker, 237 Ark. 261, 372 S.W. 2d 828 (1963).

Tested by the recited rules-we conclude that the verdict is supported by substantial evidence. The factors supporting the verdict are (1) the severity of the impact; (2) the testimony of appellee and his wife that appellee continues to suffer pain; (3) the testimony of the doctor about the recurrence of pain even after it is thought that a patient has recovered from this type of injury; and (4) property damage and medical bills in the sum of $738.70.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Steve PROUT v. STATE of Arkansas
    CR 74-31
    510 S.W. 2d 291
    Opinion delivered June 10, 1974

      Troy L. Wiley, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Steve Prout was charged on September 15, 1972, with possession of marijuana for sale in violation of the Arkansas Controlled Substances Act. He was arraigned on July 3, 1973, and tried on July 27, 1973. A jury found him guilty and fixed his punishment at four years’ imprisonment. Prout contends that he was denied a speedy trial and that the trial court erred in failing to dismiss the charges against him. He moved to dismiss upon this ground prior to his trial. We agree that the denial of this motion was reversible error.

It is conceded that three terms of court elapsed before the trial of Prout, who was not held in custody pending trial, having been admitted to bail. The state urges there was no error in denying Prout’s motion, however, because the court’s docket showed that the case was passed on motion of the defendant on January 3 and March 9, 1973. This, however, was not sufficient under the gircumstances shown in support of the motion. When the motion was made, the circuit judge noted that the docket reflected that the case was passed on the motion of the defendant on both dates. The docket entry as of January 3 actually stated that the prosecuting attorney asked that the case be passed on motion of the defendant. The reporter’s record of proceedings on January 3, 1973, reflects that when the case was called the prosecuting attorney merely announced that it might be passed on motion of the defendant.

Prout, in support of his motion, testified that the prosecuting attorney never gave him any indication when the case would be tried, and that he had no idea why the case did not come up in January. He had dispensed with the services of his attorney between the September and January terms of court. He emphatically denied ever having asked that the case be passed, but admitted that he had never demanded trial. He also said he had conversed with the deputy prosecuting attorney about the trial date, but never requested a delay. Prout said he was not present in court, either in person or by counsel, on either January 3 or March 9. Although the prosecuting attorney unequivocally stated that, if Prout offered testimony in conflict with the docket entries, he would request the court to “let us make a record on it,” no one testified on behalf of the state.

We have said that the judge’s docket is competent, but not conclusive, evidence of facts recited thereon, and that it should be corrected when all the testimony is to the contrary. Smith v. Wallis-McKinney Coal Co., 140 Ark. 218, 215 S.W. 385. Affirmative recitals on a judge’s docket are prima facie at best, and any presumption arising from a docket entry as to the authority under which an attorney acted may be rebutted by parol evidence. Visart v. Bush, 46 Ark. 153. The trial court was not justified in relying upon the docket entries when Prout testified in unequivocal contradiction of those recitals and the state did not even attempt to refute his testimony.

The circuit judge seemed to put great emphasis on appellant’s failure to demand trial. This has not been required since our decision in Holland v. State, 252 Ark. 730, 480 S.W.2d 597 (1972). Since that decision, a defendant has to do no more than show that the delay did not happen on his application.

Since there was error in denying appellant’s motion to dismiss for failure to bring him to trial within the prescribed time, and the state has failed to show any reason for not having done so, the judgment is reversed and the case dismissed.


author: J. FRED Jones, Justice.

text:
    Ruby MINTON and Eva L. SIMPSON v. Roy McGOWAN et ux
    74-42
    510 S.W. 2d 272
    Opinion delivered June 10, 1974

      Eugene Sloan, for appellants.

      L. D. Gibson, for appellees.
   J. FRED Jones, Justice.

This is an adverse possession case in which Ruby Minton and her sister, Eva L. Simpson, appeal from a chancery court decree in favor of their brother, Roy McGowan, wherein the chancellor held that McGowan had obtained title to the parties ancestral estate consisting of 80 acres by adverse possession. This is the second appearance of this case before us. On the first appeal Minton & Simpson v. McGowan, 253 Ark. 945, 490 S.W. 2d 136, the chancellor sustained McGowan’s demurrer to the evidence presented by Minton and Simpson. We concluded in that case that Minton and Simpson “offered some evidence presenting factual issues for determination,” and we held that the chancellor erred in sustaining the demurrer to the evidence and remanded the case for further proceedings.

The facts, as more specifically set out in our original opinion, reveal that E. A. McGowan was the owner of 80 acres of land when he died in 1933 leaving surviving him, his wife Annie McGowan and seven children including the parties to this action. As pointed out in our previous opinion, Roy’s two sisters, Ruby and Eva, married and moved away from the farm in 1924, but Roy remained on the farm with his mother following his father’s death, and has continued to live on the farm since his mother’s death in 1951.

In 1952 the appellants Ruby Minton and Eva Simpson, together with others of the E. A. McGowan heirs, consulted an attorney in Jonesboro concerning drainage district deeds under which, according to them, Roy was claiming title to the property. No action was taken, however, and Roy continued to live on the farm and in 1970 obtained deeds from all the heirs except the appellants. On September 10, 1970, the appellants, Minton and Simpson, instituted the present action for partition.

In a discovery deposition Mrs. Minton said she is 66 years of age; that she married R. C. Minton when she was 17 years of age and that they lived about a mile from the land here involved, until her husband’s death about six years ago. She said Roy had lived on the farm all his life and that following her father’s death Roy farmed the place and rented it out, but never did pay any rent to her. She said her mother died in 1951 and she had only been on their homeplace twice since then. She said that following her mother’s death she and all the other heirs gathered at the homeplace in the fall of 1951 and talked with Roy about dividing the land, but that no division was made. She said she was on the place the second time when a brother-in-law died about eight or nine years ago. She said all of the family and heirs were present on that occasion but that she was only present for a short time and does not recall anything being said at that time about dividing up the land. She said that after she participated in the discussion with Roy McGowan in 1951 about dividing up the land, she and some of the other heirs talked with attorney Joe Barrett in Jonesboro about partitioning the land. She said at that time they discussed with Mr. Barrett, Roy McGowan’s contentions that he had obtained some storm and sewer drainage district deeds to the property and was claiming to own the place. She then testified as follows:

“Q. So in 1951 and 1952 you knew that Mr. Roy McGowan was claiming this place was his?
A. Well he had made mention that it was his and I made mention it was mine.
Q. You talked to Mr. Barrett about a partition suit?
A. Yes, we talked it.
Q. Did you ever file any action prior to this action to partition the land?
A. No.
Q. From 1951 or 1952 until today, you haven’t done anything about the dividing of the land?
A. He hasn’t — I haven’t — only I have told him that I would like to have my portion.
Q. And he has told you that it is his land?
A. Yes, before Ma’s passing he told me that but it was my mother’s until she died, wasn’t it?”

Mrs. Simpson also testified by discovery deposition. She said that Roy continued to live on the land and continued to farm and rent it out after their father’s death. She denied knowing anything about delinquent improvement assessments. She said she was present at the meeting in 1951 when all the heirs met with Roy and discussed a division of the property. She said she was also present at the meeting with attorney Barrett. She said that after they had asked Roy to divide the place and he had refused to do so, they talked with Mr. Barrett about getting the place divided because Roy was claiming to own all of it. She denied knowing anything about delinquent drainage district assessments on the property. She said their conference with Mr. Barrett was some time in the fall of 1952 and she then testified as follows:

“Q. And what you told Mr. Barrett was that Roy was claiming it as his own?
A. Yes.
Q. And since then Roy has continued to remain in possession of it and continued to claim it as his own, hasn’t he?
A. Yes.
Q. And you have never received any of the benefits from it?
A. No.”

The appellee, Roy McGowan, testified that he married in 1924 and continued to live on the land with his parents until his father’s death in 1932 and his mother’s death in the spring of 1951. He said that following his father’s death the land became delinquent for improvement district assessments, and he discussed the delinquencies with his sisters and requested them to help in the payment of the delinquency. He said they refused to help with the payments so he borrowed the money on a note endorsed by Richard Slaven and paid the assessments and took deeds from the drainage district. He said the first deed was dated February 1, 1936, and that he later obtained another deed from the same district to him and his wife as grantees dated October 15, 1941. He then testified as follows:

“Q. And so Richard Slaven — the gentleman back here— endorsed your note so that you could borry [sic] the money to pay the taxes on this land after your sisters told you that they weren’t going to pay them and that you could pay them and have the land?
A. That’s right.”

An affidavit of A. R. Slaven was introduced into evidence in which Mr. Slaven, who was a cousin to the parties, said Roy McGowen had worked for him at a sawmill and had stated he thought he should have the property here involved because he had taken care of his mother and had paid taxes on the property. He also said he discussed with Roy the matter of giving right-of-way for a road across the McGowan land and Roy stated he didn’t have anything to give because the property did not belong to him. Other interested witnesses testified to statements made by Roy indicating that he knew the property did not belong to him, and indicating he was not claiming it as his own, but all of these statements were emphatically denied by Roy.

The appellants correctly point out that stronger evidence of adverse possession is required of a cotenant where a family relationship exists than is required against a stranger. Johnson v. Johnson, 250 Ark. 457, 465 S.W. 2d 309. As we pointed out in Johnson, the relationship between such cotenants is one of trust and confidence and in order for possession of one such tenant in common to be adverse to his cotenants, it is necessary for him to bring home to his cotenants the knowledge of his hostile claim either directly or by acts so notorious and unequivocal that notice must be presumed. The chancellor in the case at bar was in a better position than we are to evaluate the witnesses and reconcile the conflict in their testimony and where the chancellor’s findings and decree are not against the preponderance of the evidence, this court will affirm. Fisher v. Fisher, 237 Ark. 321, 372 S.W. 2d 612.

According to appellant Minton’s and Simpson’s own testimony, they knew the appellee Roy McGowan was claiming possession adversely to their interest as early as 1951 in any event. When such possession is actual, open, notorious, hostile, exclusive, and accompanied with an intent to hold adversely against the true owner for the statutory period of seven years, then such adverse possession ripens into good title. Montgomery v. Wallace, 216 Ark. 525, 226 S.W. 2d 551.

We are unable to say that the chancellor’s findings and decree are against the preponderance of the evidence.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    J. L. CHAVIERS v. Hoyle SIMMONS et ux
    74-21
    510 S.W. 2d 301
    Opinion delivered June 10, 1974

      Holmes, Holmes & Trafford, for appellant.

      Thurman Ragar, Jr., for appellee.
   Conley Byrd, Justice.

In suing upon a check given by appellant J. L. Chaviers the appellees Mr. & Mrs. Hoyle Simmons attached to their complaint an alleged copy of the check and an affidavit of no defense pursuant to Ark. Stat. Ann. § 27-1142 (Repl. 1962). Appellant in filing his answer pro se did not file an affidavit of merit as required by the statute. Upon a motion to strike appellant’s answer, the trial court continued the matter to permit appellant to employ counsel. On July 18, 1973, after hearing arguments of counsel on the issue of striking appellant’s pro se answer, the trial court continued the matter for both parties to file briefs. The briefs were filed between July 14 and July 26, 1973. On July 31, 1973, the trial court ordered that the answer of appellant be stricken and entered judgment against appellant for $1,-486.00, the amount of the check. For reversal, appellant contends that Ark. Stat. Ann. § 27-1142, supra, does not apply to dishonored checks and that appellees were not entitled to judgment without production of the dishonored check.

We find no merit in appellant’s contention that the trial court erred in striking his answer. Ark. Stat. Ann. § 27-1142, supra, by its’ terms applies to “actions founded upon a note, bond, bill of exchange, mortgage, or other written instruments.” Neither do we find anything in the commercial code that is in conflict therewith.

While we agree that the trial court was proper in striking the answer filed by appellant, it does not follow that the trial court was correct in entering judgment without a profert. In the case of Clark, Executrix v. Shockley, 205 Ark. 507, 169 S.W. 2d 635 (1943), we pointed out that “[I]t is fundamental principle that, in order to sustain a judgment, the note sued on must be introduced in evidence or its absence explained.” In so holding we said:

“In the case of Sebree v. Dorr, 9 Wheaton 558, 6 L. Ed. 160, the Supreme Court of the United States, speaking by Mr. Justice Story, in 1824, said: ‘There is another objection, which is equally decisive of the case. It is, that there was no production of the original notes, nor any excuse offered to account for the nonproduction of them at the trial. It is a general rule of the law of evidence, that secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party. Here no proof was offered to show that the original notes were impounded, or that they were not within the possession of the party, or within the reach of the process of the court.’
The above quotation is directly in point with the facts in the case at bar, and that case adds further weight to our holding here because the United States Supreme Court there had before it a statute of the state of Kentucky which provided that the proof of execution of an instrument was not required unless its execution was denied under oath. We have practically the same statute in Arkansas as the Kentucky statute. (See § 5123 of Pope’s Digest.) Profert of a promissory note has been the law in Arkansas since 1842. See Beebe v. The Real Estate Bank, 4 Ark. 124; Mississippi, Ouachita & Red River R. R. Co. v. Gaster, 20 Ark. 455. Recent annotations on kindred subjects can be found in 102 A.L.R. 460 on ‘the possession of a note is essential to maintain the action’; and in 129 A.L.R. 977 on ‘the necessity of producing in court the note or evidence of debt sued on.’ ”

The Uniform Commercial Code, Ark. Stat. Ann. § 85-3-307(2) (Add. 1961), also recognizes the necessity of a profert before entry of a judgment.

It has been suggested that we should not consider the lack of profert since it is raised for the first time on appeal. However, Ark. Stat. Ann. § 27-1762 provides that the absence of an objection in the trial court will not prejudice a party “. . .if a party has no opportunity to object at the time it is made. . . .” The record here shows that the trial court’s order of July 13, 1973, treated the appellee’s motion as one “to strike the answer of defendant.” The parties addressed themselves to that issue in their memorandum briefs before the trial court. So far as the record before us shows the trial court in deciding the motion to strike the answer upon the briefs presented also and simultaneously therewith entered judgment for the amount of the check without requiring a profert. Thus, it would appear that appellant had no opportunity to object to the entry of a judgment without a profert at the time it was made.

It follows that the trial court correctly struck appellant’s answer pursuant to Ark. Stat. Ann. § 27-1142, supra. However, it erred in entering a judgment without a production of the instrument sued upon.

Reversed and remanded.

George Rose Smith, Brown and Rdgleman, JJ., dissent.


text:
    Beulah LOVETT v. Lona TURNER, Adm’x of The Estate of William LOVETT, deceased
    74-44
    510 S.W. 2d 569
    Opinion delivered June 10, 1974
    [Rehearing denied July 15, 1974.]

      Haley & Claycomb, for appellant.

      Paul K. Roberts, for appellee.
   Conley Byrd, Justice.

Following our reversal and remand in Lovett v. Lovett, 254 Ark. 349, 493 S.W. 2d 435 (1973), for the determination of William Lovett’s mental competency to maintain a divorce action, the trial court after the taking of additional evidence granted appellee William Lovett a divorce on three years separation but awarded to appellant Beulah Lovett her statutory property rights on the basis that appellee was at fault. For reversal appellant contends that the trial court erred in finding that appellee had the mental capacity to maintain the divorce action.

The record shows that appellee again testified before the court and that in addition several other witnesses testified that appellee, although under a Veterans Administration Guardianship, carried on a normal life. On the other hand appellant produced evidence which if believed would have shown that appellee was not mentally competent. On the record before us we cannot say that the Chancellor’s finding on the issue of mental incompetency is contrary to a preponderance of the evidence. It therefore follows that the judgment must be affirmed.

Affirmed.


author: Frank Holt, Justice.

text:
    Collier WENDEROTH Jr., Nancy WENDEROTH, and O. K. FEED MILLS, INC v. The CITY OF FORT SMITH, Arkansas, A Municipal Corporation, and the MIDLAND CORPORATION
    74-4
    510 S.W. 2d 296
    Opinion delievered June 10, 1974

      Harper, Young & Smith, for appellants.

      Daily, West, Core & Coffman and Warner & Smith, for appellees.
   Frank Holt, Justice.

Appellants sought to enjoin the appellees from constructing a paved street on a 25’ strip of land abutting appellants’ property which they owned in a platted area called Wenderoth Acres. The chancellor dismissed the complaint. For reversal of that decree appellants contend that the chancellor erred in finding that the strip was dedicated for street purposes to the appellee city; the city had never accepted any purported dedication by ordinance as required by Ark. Stat. Ann. § 19-3802 (Repl. 1968); and the chancellor erred in finding that the dedication was accepted and was irrevocable. We agree with the chancellor.

In 1948 appellant O. K. Feed Mills, Inc., as owner of 30 acres, had it platted and filed for record. The plat contained this language:

This plat is executed for the purpose of filing for record, and the streets shown thereon are hereby dedicated for public use as highways.

Appellant Wenderoth’s father (now deceased) was then owner of that corporation. The plat was signed by him as the corporate president. Appellant Wenderoth now occupies that position and testified in a representative capacity and also as an individual owner since he and his wife, Nancy, had purchased lots from the corporation. The plat consisted of 36 lots with the two interior streets being named. The abutting 25’ strip in dispute was not named nor has it ever been opened or used by the public. One-half of one of the named streets was closed and unused by the public at the time of this action. The chancellor ordered it opened which resulted in it intersecting at the disputed 25’ strip. Appellants do not appeal from that part of the decree.

Appellees correctly contend that the failure to label or name a street will not necessarily prevent a public dedication inasmuch as the intent of the dedicator is controlling. Siegenthaler v. Newton, 174 Okla. 216, 50 P. 2d 192 (1935); Atlas Lumber Co. v. Quirk, 28 S.D. 643, 135 N.W. 172 (1912); and 26 C.J.S. Dedication, § 23. In the case at bar, the appellants claim ownership of the strip of land on the basis that it was neither dedicated nor formally accepted by the city for public use. However, the strip was never assessed or taxes paid upon it after filing of the plat. The platted lots were assessed and taxes paid thereon. It appears from the plat that in addition to the 25' strip on the east there are similar 25' dedicated strips also running the entire length of the Wenderoth subdivision on the west and south bounderies as a part of named thoroughfares which resulted in 50’ widths. It is undisputed that platted lots were sold with .reference to this plat.

It is well established that whenever a dedicator-owner of land makes and files a plat and thereafter lots are sold with reference to it, as here, such constitutes an irrevocable dedication of any street or passageway for public use shown' or indicated on the plat. Arkanssas State Highway Comm. v. Sherry, 238 Ark. 127, 381 S.W. 2d 448 (1964); Incorporated Town of Mountain View v. Lackey, 225 Ark. 1, 278 S.W. 2d 653 (1955); Porter v. City of Stuttgart, 135 Ark. 48, 204 S.W. 607 (1918); Frauenthal v. Slaten, 91 Ark. 350, 121 S.W. 395 (1909); and Hope v. Shiver, 77 Ark. 177, 90 S.W. 1003 (1905). Furthermore, whenever a dedication becomes irrevocable, a public authority can accept the dedication for public use whenever the necessity occurs. Ark. State Highway Comm. v. Sherry, supra.

In the case at bar, it is also most significant that on an occasion (preceding the present action) appellants objected in-a public proceeding before the city officials to a proposal to close or vacate a 25’ street dedication, adjacent to the 25’ strip in question, by an adjoining property owner and then relocate the street one block further to the east. In objecting to the relocation appellants recognized that the two 25’ strips were dedicated for a total dedication of 50’ for street purposes. Thereafter, the appellee city relied upon the proceeding in rezoning and appellee Midland Corp. purchased adjacent property in reliance on the plat which indicated the 25’ strip as a public passageway. In the case at bar, it is sufficient to say that the appellants are estopped from denying the disputed strip is a dedicated public street because of the inconsistent position previously taken at a meeting of the city officials. In any event we cannot say that the chancellor’s finding that the strip was dedicated for street purposes is against the preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Donald Wayne KERR and Pat PINNELL v. STATE of Arkansas
    CR 73-161
    512 S.W. 2d 13
    Opinion delivered June 17, 1974
    [Rehearing denied July 22, 1974.]

      Murphey, Carlisle & Taylor, for appellant Pinnell and Parker & Kincannon, for appellant, Kerr.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

This is a conspiracy case. Appellants, Donald Wayne Kerr and Pat Pinnell, were charged by Grand Jury indictment with the crime of Assault with a Deadly Weapon, a misdemeanor, allegedly committed on January 17, 1972, on Charles Ledbetter, the indictment charging that appellants, along with Hayden Mcllroy, Jr., “did unlawfully assault Charles Ledbetter with a steel chain with the unlawful intent then and there to inflict bodily injury upon the said Charles Ledbetter, in that said defendants conspired with and otherwise aided, abetted, assisted, advised and encouraged each other, and others, in the perpetration of the assault, and after the assault had been perpetrated, conspired with and otherwise aided, abetted, assisted, advised and encouraged each other, and others, to conceal the identities of those persons responsible for the assault.”

A severance was granted to Mcllroy and he is not involved in the case presently before us. On trial, the jury returned a verdict of guilty as to both appellants and the punishment of Pirinell was fixed at a sentence of one year in the Sebastian County Jail and the payment of a fine of SL-OOO, while the punishment of Kerr was set at a sentence of six months in the Sebastian County Jail and a fine of $500.00. From the judgment entered in accordance with this verdict, appellants bring this appeal. For reversal, Pinnell relies upon four asserted errors while Kerr urges two alleged errors. To understand the case, it is necessary to give the background. Charles Ledbetter, a Fort Smith attorney, was assaulted with a steel chain soon after leaving his office about dusk on January 17 and was rather severely beaten. Ledbetter testified that he saw his assailant, but did not know him. Ledbetter represented Mrs. Mcllroy in a child custody case, and without detailing the reasons set forth in his testimony, suffice it to say that Ledbetter had cause to believe that the assault upon him was a result of his representation of Mrs. Mcllroy. After a police investigation, Glen Weston Chamblee was arrested and charged with the assault. At the time of his arrest, Chamblee was carrying a pistol, and he was also charged with that offense. On trial, Chamblee was convicted of both offenses and sentenced to 90 days in jail and a $250.00 fine for carrying a prohibited weapon and was sentenced to one year in the Sebastian County Jail and fined $1,000 for the assault upon Ledbetter.

At the trial of appellants, Chamblee testified that, while in jail serving his term for carrying a prohibited weapon, he decided that the best thing for him to do was to tell the officials all the details relating to the assault of Ledbetter. ‘Well, after I’d been in there awhile, and I saw that they [meaning Mcllroy and Pinnel] weren’t doing anything for my family, really, you know, it got me worried because, you know, if they was gonna take care of me, they could take care of my family, and then I had these people that, well, not different people, some of them that knew, had a good idea I was guilty, that told me that the best thing I could do was just to clear my name and get it over with, and *** ” He said the money for his defense had been raised by his father mortgaging his house for $5,000 and that he decided the best thing to do was “just clear my name and get it over*** Well, a man come up to visit me I knew and I told, asked him to go to the Prosecuting Attorney, Mr. Bill Thompson then, and tell him I would like to talk to him, and he went down and told him and they sent for me. It wasn’t right away. It was about a week or so, I think, maybe.”

Chamblee said that he talked with the prosecuting attorney, giving the details that linked appellants to the conspiracy; that he offered to help in obtaining evidence to clear up the case, and about two months after making this offer, he was released from jail for the purpose of conducting undercover work which would be of aid to the police officials'; that he was not promised any sort of reward for his aid, and that it was done voluntarily and at his own suggestion.

From the witness stand, Chamblee testified that in May of 1971, he was working with the appellant, Donald Wayne Kerr, the two being salesmen selling sewing machines, and stereos. He said that they worked with each other every day and went out at night together to bars. According to the witness, around the first of January, 1972, he told Kerr that he needed money pretty much and the latter replied, “Well, I got a job coming up I think maybe you can handle it for me, if you will.” He testified that Kerr just said something about having a lawyer that “needed working over.” No details were given for about a week and Chamblee was then told that the lawyer’s name was Charles Ledbetter, an attorney of Fort Smith and, “he told me he’d pay two hundred dollars just to beat up, not kill him or anything, just work him up good. He said, ‘Let him know he is being beat up for a purpose. He’ll know what it’s all about, ***.’ About the end of the weekend, he come up and ask, told me the job was gonna have to be done. That if it wasn’t done, they was gonna bring someone else in from out of town to take care of it. ” The witness said he followed Kerr’s directions and when he struck Ledbetter, told the latter, “Next time, it will be worse.” The witness testified that he saw Kerr the next day and told the former that the job had been taken care of; that Kerr left, returned with the $200.00 and paid him. A few days later, according to Chamblee, Kerr told him that he (Kerr) had received a phone call and that “we’ve got something to do. We’ve got to go back up a man in Van Burén. So, we went over there to Pat Pinnell’s chicken hut place he had over there and went in.” Chamblee said that Pinnell supposedly owed some money to someone who was looking for him, and Pinnell desired someone to “back him up” in case that person arrived. Further, “When I walked in, Donald Wayne said, ‘This is the man that did a job for us,’ and Pat Pinnell shook hands with me and everything, and gave us something to eat, and we hung around there for a while and then Donald Wayne left.”

Chamblee said that Pinnell looked pleased when told he was the one who had “done the job.” The witness said that a few days later, he learned that the police were looking for him, and he mentioned this to Kerr who told him if he got into any trouble, to call a certain lawyer. Kerr said, according to Chamblee, “Everything will be taken care of, we will get you attorneys and everything, bond fees if anything does happen.” He said that he was arrested and spent two weeks in jail before making bond. Chamblee testified that Pat Pinnell called him on the phone, stating that he wanted to talk with Chamblee and an agreement was made to meet at the Iron Horse Restaurant. Upon meeting, he entered Pinnell’s car and they drove around, having a long conversation. At this time, Pinnell gave him $200.00 to help “hold me over.” He said Pinnell told him that the lawyer he had wasn’t very good; that he ought to get another one. Just prior to this meeting, the witness stated he had talked to Kerr who told him the man the job was done for was a banker named Mcllroy. “You might need the name sometime in case something happens.” He said that he mentioned this name to Pinnell who said nothing. Chamblee stated that he had spent $3,500 on an attorney and was told by Pinnell that he would get his money back when it was all over with. When asked if Pinnell told him specifically why he had engaged in the scheme to assault Ledbetter, that appellant replied:

“He said that he owed the bank up there eight thousand dollars, and he said that this was his way of keeping him from having to pay it back so much. He said that he went up and told the guy that the job had been done and he, his reactions was, he said, ‘I don’t want to hear about it.’ He said it made him real nervous.”

Thereafter, Chamblee was convicted and made the proposition to the Sebastian County Prosecuting Attorney as hereinbefore related. In compliance with that offer to aid, a body transmitter, or “bugging device” was placed on the witness, “A thing they put inside me that could be picked up by tape recorder.” After experimenting with the device, he contacted Pinnell by telephone and an arrangement was made to meet at Creekmore Park. The conversation of the meeting was recorded on tape, subsequently transcribed, and Chamblee identified it as properly reproducing the conversation. Another meeting was likewise arranged with Pinnell at the same location, and again the conversation was taped, part of it taking place at the picnic table, after which the parties sat in Pinnell’s automobile and talked. These meetings were viewed, and the recording equipment operated, by Captain James Neighbors of the Arkansas State Police, Bob Hatfield, a City Detective of Fort Smith, and the prosecuting attorney, who were secluded within 50 feet of the two men. Pictures of the two were also taken at the time. After the first meeting between Chamblee and Pinnell, the former turned over to the officers $200.00 which he said was given to him by that appellant. On a third occasion, when no tape was made, there was another meeting between Pinnell and Chamblee, prior to which Chamblee was searched and determined to be without large bills. Following the meeting, Chamblee turned over two $100.00 bills to Officer Hatfield, which he testified had been given him by Pinnell. There is no need to fully detail the recorded conversations between the two which were rather lengthy. Chamblee was complaining that he needed money to obtain another lawyer and Pinnell asked about a “couple of hundred to kind of start you off.” Pinnell mentioned that if he obtained the money, the officers were going to ask Chamblee where he received it and the latter replied, “I can always come up with something.” Pinnell stated that when Chamblee had been sentenced to the County Jail, he (Pinnell) couldn’t do a thing; couldn’t visit Chamblee; couldn’t contact anyone about him, and he hoped that Chamblee understood. From the record:

“Pinnell: I mean I just couldn’t come running, you know, just out like here, this is fine, but I don’t want them to start putting anything together, they already know the story. All they need is for you just to go tell them something. And if this were to happen, what’s it going to benefit you - ’cause then you got me in trouble, which really, I don’t know what I couldn’t beat the charge because my association throughout the whole thing was not with you, it was with another man and when that man gets into it, I don’t know, have you been talking to Donald Wayne?
Chamblee: No, I haven’t seen him.
Pinnell: Well, I think you made a real bad move, I think you should have come and tried to find me and let me see if I couldn’t help you on this thing, *** So, if I were you I’d think about going out of town and working for someone.
Chamblee: That’s what I want to do.
Pinnell: All right, now, I would just start inquiring, you know. I don’t know who you’re going to talk to because there ain’t nothing I can do. I can’t go fight for you. You know what I mean. Because then it draws me into the thing and then we’re all in trouble. I hate to put you into a position to have to face all this heat and if you can come up with another solution, tell me and I’ll be happy to try to work it out. ***
I’m not going to leave you out in the G— d— cold and not only help you but I’m going to do everything I told you I was going to do, but, —, you can’t go running to all these other people and then come to me and expect me to like it, you know. I know what you’re faced with, but also I’ll tell you, if you’ll depend on me, I’ll work it out for you someway ***
And, hell, I’m even working on a deal. Remember I told you that I was going to set you up so you’d have a pretty good damn deal after this was all over with. Well, —, I’m working on it, I’ve almost got it set up and I think I can get you into a hell of a deal. It might be kind of shabby to start off with, but it’ll be shabby for me because I’m going to be in there with you. If you want to work with me and it ain’t going to be no illegal stuff, it’ll be right down the middle and we’ll have to work our —off but I think in five years, we might be worth several hundred thousand dollars out of it. ***
But, damn, you haven’t said nothing to anybody, I hope. I’ll tell you I sure would hate to see this thing messed up right now because G— d — , I’m looking at a proposition where we can really make some money, if you want to. ***
Well, I hope that I’ve eased your anxieties a little bit - just ease by the house any evening, you know, just keep me posted on what’s going on. And I might be able to do a little, you know, something on the side somewhere to help you out. —, I want to see you out of this mess, too. I know that it’s tearing you and your family and everything else up, but, hell, look at it from this point of view that if you - say they were to offer you an immunity if you would cop out on the other people involved in this thing, and you said, well, all right, I’ll do that, then, where does that leave you?”

The above quoted excerpts are all taken from the first recording. During the second recorded conversation, Pinnell mentioned that the lawyer (not involved in the trial presently before us) who had represented Chamblee told him (Pinnnell) that Chamblee had “copped out on you, told them everything.” Chamblee denied this, but stated that he did tell his lawyer the whole story because the attorney told him that he would not be able to help him unless he told him all the facts.

Pinnell then asked if the lawyer took down what was being said or if Chamblee signed anything or if there was any tape recorder. Chamblee replied in the negative to which Pinnell said:

“G— d — ! I sure wish you hadn’t done that, see, ’cause what he’ll probably do now is go up and tell them that you told him the story and convince the Prosecuting Attorney that would be enough evidence to arrest me and my story is that I don’t know a G— d— thing about it, I don’t care what anybody says to me, I don’t know anything about it***
Well what would wind up would be, you and I, we’d be getting put in the penitentiary and everybody else would be laughing at us, so if you want company and you cop out and I go with you (chuckle) but you know if we can kind of keep it cool, if we can just - if you could just buck up and stand the heat, I’m sure that like I tell you, the things that I’m telling you, everything will work out. *** You see, here’s the thing, I can’t say anything to you because now I’m in a position that I could be drug in, you understand, since you told Shaver [the lawyer who represented Chamblee on trial], if they drop the case and had a retrial, I’m liable to be called in. If I told you something, then they might talk you into telling them that, see, where in the hell is that going to leave me. I mean I can’t tell you anything, you’re just going to have to - when you ask me something, I’ll say I’ll try to take care of you, you’re just going to have to rely on what I say, you know, I mean because if I don’t ever say it to you then you can’t say I said it, is that right? *** I don’t want to be arrested, you didn’t want to be arrested to begin with, if you bring me into it, here comes Donald Wayne, you understand, because I did no business with anybody as far as you’re concerned, all that you know about me is hearsay, up to now, right. Except that I’ve given you some money which I would deny that, too.
Chamblee: Where is Donald Wayne now?
Pinnell: I don’t know, I haven’t seen him or heard from him. I don’t know how you ever got arrested. No. 1, I didn’t say anything to anyone. I’m sure you didn’t say anything to anyone. I know that Leo wouldn’t say anything to anyone, so that only leaves Donald Wayne.
Chamblee: He runs his mouth a lot.
Pinnell: If he said something to someone, then maybe that’s the reason they picked you up.
Chamblee: I never could find out how they got my name.”

Let us first make mention of the pertinent statutes involved, remembering that the charges constitute misdemeanors. Ark. Stat. Ann. § 43-2116 (Repl. 1964) provides that in misdemeanor cases a conviction may be had upon the testimony of an accomplice.

Ark. Stat. Ann. § 41-118 (Repl. 1964) provides that the distinction between principals and accessories before the fact is abolished, and all accessories before the fact shall be deemed principals; said section also provides that in case of a felony, one indicted as principal may be convicted as an accessory after the fact, and if indicted as accessory after the fact, may be convicted as a principal. Of course, all participants in a crime constituting a misdemeanor are guilty as principals. See Dickson v. State, 230 Ark. 491, 323 S.W. 2d 432, and cases cited therein.

Ark. Stat. Ann. § 41-120 (Repl. 1964) defines accessory after the fact as follows:

“An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.”
Ark. Stat. Ann. § 41-2804 (Repl. 1964) provides:
“Every person who shall by bribery, menace, or other unlawful means, directly or indirectly, induce or attempt to induce any witness to absent himself, or avoid a subpoena or other process, or to withhold his evidence, or shall deter or attempt to deter him from offering or giving evidence in any cause, matter or process, civil or criminal, shall, on conviction, be adjudged guilty of a misdemeanor, ***.”

The statute relating to the crime of assault with a deadly weapon, of which these appellants were convicted, provides for a punishment of a fine of not less than $50.00 nor more than $1,000, and imprisonment not exceeding one year.

Let us first discuss the contentions of Pinnell. The evidence of Chamblee and the tape, pertinent portions heretofore related, certainly furnish substantial evidence that Pinnell attempted to influence Chamblee and to deter him from giving any evidence relative to other participants in the conspiracy to assault Ledbetter. Promises were made in an effort to placate Chamblee; money was furnished; and it is quite obvious from the tapes that Pinnell was endeavoring to the utmost to prevent Chamblee from “copping out” or saying anything that would aid the authorities in learning the identity of participants (other than Chamblee) in the conspiracy. In fact, as reflected in the tape, he did not even tell Chamblee some of the details, stating that the latter could not possibly tell the police if he didn’t know himself. As stated, the evidence of Chamblee and the tape were ample for the jury to find that Pinnell was an accessory, and, this being a misdemeanor case, accordingly guilty as a principal. In fact, there is no contention on the part of Pinnell that the evidence is insufficient; rather, the asserted grounds for reversal are based upon four other points which we proceed to, discuss.

It is first asserted that the two intercepted oral communications between Chamblee and Pinnell were illegally obtained and their admittance into evidence was reversible error, it being contended that, provisions of the Federal Omnibus Crime Control Act, 18 U.S.C.A. § 2510, et seq., were not followed. We do not deem it necessary to discuss the various provisions of that act, for we are of the opinion that under § 2511 (2) (c) the evidence was admissible. That section provides:

“It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

But, says appellant, this section has no application to the case at hand because the cooperation, or consent given, by Chamblee to participate in the communication, was not voluntary. It is argued that Chamblee (at the time this case was heard) had not served any of his sentence for the assault on Ledbetter, nor paid any part of his fine, but had only served his sentence for carrying the pistol. We do not agree that this fact establishes involuntariness on the part of Chamblee. That witness himself testified very positively that he, of his own accord, and somewwhat influenced by the fact that his family was not being taken care of by his alleged co-conspirators, and desiring, as per the old saying “to get it off his chest”, sent word to the prosecuting attorney that he (Ch: -nblee) desired to see him; that about a week later that official sent for Chamblee and they engaged in conversation. He said the prosecuting attorney made him no promises whatsoever, and he was returned to the jail to continue serving his sentence. About two months later, Chamblee said that he was released from jail, made bond and plans were made for him to assist in the investigation. We are of the opinion that the evidence supports the State’s position that Chamblee acted voluntarily.

The argument just discussed is the principal one advanced by Pinnell, though it is also mentioned that the prosecuting attorney should have obtained a prior court order authorizing the interception of the two conversations. This contention is contrary to the holding in United States v. White, 401 U.S. 745.

It is next argued that, assuming the transcriptions were legally obtained, they were admitted in error due to the procedure of introduction and prejudicial content. Here again, we find no merit in appellant’s argument. The contention is that the court should have listened to the tapes out of the presence of the jury, giving counsel an opportunity to object to illegal, irrelevant, incompetent, or immaterial matters contained therein. The short answer to this contention is that counsel for Pinnell filed a motion for discovery and inspection requesting a copy of, and inspection of, all written or recorded statements made by this appellant. The court’s order, dated May 5, 1973, reflects, “the state asserts that it has, or will, deliver to defendants’ counsel all records statements of such defendants and make available to counsel for defendants the original tapes of the statements of defendants and such motion with respect to the furnishing of defendants their statements to be used by the state is granted;”.

The court also granted a motion with respect to the State’s furnishing to the defendants evidence in the State’s possession favorable to defendants, directed that defendants be furnished a list of witnesses that the State intended to call, and also granted the motion with respect to obtaining a bill of particulars. It thus appears that appellant Pinnell had ample time in which to acquaint himself with the contents of the tapes, and to make any further motions with regard to the objections heretofore mentioned. This was not done.

It is also mentioned that the statements made by Pinnell which were recorded were in the nature of a confession and that his appellant was accordingly entitled to a Demo hearing before such tapes were presented to the jury, in order to determine if the statements were voluntarily made. We do not agree that the recorded statements of Pinnell were a confession and it is very obvious from reading the transcriptions of the tapes that all statements were voluntarily made. This was simply a matter of “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. ” See United States v. White, supra, and cases cited therein. Of course, had Pinnell known that his remarks were being recorded, we daresay such statements would not have been made, but this fact has nothing to do with whether they were made freely and of his own accord. After all, Chamblee could have testified concerning his conversation with Pinnell, and did in fact testify to quite a bit of the conversation. The tape recording was simply the best possible evidence of the conversations and cooroborated the testimony of Chamblee himself.

It is next asserted that Pinnell’s trial counsel, Darrell Johnson, conducted himself in such a manner as to deny Pinnell the right to counsel guaranteed by the ^Sixth Amendment. This contention should be discussed togetÜkr with the fourth asserted error, viz., “The trial court erred in not granting a continuance so that appellant could obtain competent counsel and/or in not appointing competent counsel at trial.” The record reflects that this attorney was obtained by Pinnell more than six months before trial and several motions were filed by Johnson before the trial, the first being in December, 1972, and the last in May, 1973. When the case was called on June 25 (a Monday), the court inquired if the parties were ready. The State replied in the affirmative and Johnson then asked to approach the Bench and conferred with the court out of the hearing of the jury. Counsel stated that he had turned his file over to present counsel for Pinnell, who are conducting this appeal, on the previous Thursday or Friday. Johnson then stated:

“I don’t even have the file. He [Carlisle] said he was going to give it to Mr. Pinnell. Now, it’s my understanding, you got a copy of my letter. I know you just got it or barely did have time to read it, but I am in a very awkward position, Your Honor, it’s been my very valid impression for at least thirty to forty-five days that I wasn’t involved in this matter. I was even reassured of that in the middle of the week by the fact Mr. Carlisle talked to me about it and talked to the prosecuting attorney about it. And of course, I guess he explained his position in the thing, but I am thrown back into this thing not having prepared or anything else and 1 know that the Court may feel that I don’t have any excuse, but believe me, I do. I didn’t, the defendant doesn’t even have a telephone where he can be contacted. I don’t know where he lives and I was in Little Rock all day Saturday. Late Friday it was my impression, Mr. Carli-sle, late Thursday Mr. Carlisle represented Mr. Pinnell. It’s a very serious thing, in that I haven’t begun to prepare this case.”

The State’s attorney responded that he had had only one conversation with any other attorney on behalf of Pinnell and that had been on the previous Thursday afternoon; that he had heard rumors about a guilty plea but never about obtaining any other attorney. The State pointed out that the case had been set since May 4 or 5. Pinnell, after conferring with Johnson, stated to the court:

“Well, I feel the relationship between Mr. Johnson and I has become such that he wouldn’t offer any defense for me and, consequently, I tried to have another lawyer appointed for me, and, (Pause) that is the statement. I don’t know what else to say.”

Actually, there is no request for a continuance in the record, though there is an inference that Johnson might be seeking a continuance; however, he stated:

“All right. Let me ask you for the purpose of making the record, is the court ordering me to try this case? I don’t mind either way, but for the purpose of making the record.”

The court told Johnson to go ahead and make his record, but apparently nothing further was dictated into the record by the attorney reflecting why he was not ready for trial. While Johnson stated that he had been under the impression for at least 30 to 45 days that he was no longer involved in the matter, no reason was given to the court of why or how he had received that impression; more important, though the case had been set for at least seven weeks, counsel had not advised the court that he did not any longer consider himself the attorney for Pinnell. As stated, that knowledge only came to the court on the day of trial.

This is a strange and unusual situation indeed and raises questions as to the reason for delay in advising the court; also, there was no reason given by Pinnell why he, three or four days before trial, decided to change attorneys. At any rate, we certainly cannot hold that the trial court abused its discretion in not granting a continuance (which was not actually requested). The trial courts of this State, as in most other jurisdictions, have heavy dockets and, criminal trials, under our rules, are given priority. The State was ready for trial; appellant Kerr was ready for trial; witnesses had been subpoenaed; and the jurors summonsed. Absolutely no reason was given why all parties should not have been ready. Pinnell had selected his own attorney, and if he desired to change attorneys a few days before trial, arrangements should have been made with that attorney to conduct the trial.

Court proceedings cannot be disrupted at the last minute because a litigant decides that he needs a different lawyer to conduct his defense. The appointment of counsel for appellant by the court, under the circumstances, is also suggested under this point. Of course, in the first place, the court appoints counsel only for indigents, and there is no showing that Pinnell was indigent; in the next place, if a man who had been retained for over six months could not conduct a defense, how could newly appointed counsel, totally unfamiliar with the facts, conduct any better defense?

It is likewise argued that no proper defense was conducted, appellant largely averring that witnesses were not properly cross-examined. Of course, there was no necessity to cross-examine Ledbetter since the victim was only able to testify as to the participation of Chamblee in the assault made upon him. The only reference in Ledbetter’s testimony to Pinnell was that the victim testified that someone called him on the telephone who said his name was Pinnell, but under subsequent cross-examination by counsel for Kerr, Ledbetter said that he did not know Pinnell’s voice and could not definitely say that it was that person speaking, even after listening to Pinnell’s voice on the tape. Johnson’s turn to cross-examine followed, but there really was nothing further to ask about.

The two officers were not cross-examined by Johnson, but Neighbors only testified that he “rigged” Chamblee with the body transmitter and listened to the conversation. Officer Hatfield testified that he was also present when the recordings were being made and further testified that Chamblee was examined before one of the meetings with Pinnell, found to have no large bills, but returned from his meeting with that appellant with two $100.00 bills. There really wasn’t a great deal about which to cross-examine either officer. Counsel for Kerr only asked Neighbors one question, although his client was mentioned about ten times, such question being if Neighbors had ever seen Kerr present at any time that he (Neighbors) had participated in the investigation of the case, and in bis cross-examination of Hatfield, the tapes were mentioned only once. After counsel for Kerr finished his cross-examination, Johnson announced that he had no further questions.

In the cross-examination of Chamblee, counsel for Kerr likewise took the first cross-examination which was rather thorough, and at the conclusion of this cross-examination, Johnson conducted his cross-examination, the interrogation being pertinent to the charge against Pinnell and establishing the fact that the two (Chamblee and Pinnell) had no acquaintance prior to the Ledbetter incident. Perhaps other attorneys could have conducted a cross-examination that would have revealed more facts favorable to their client — perhaps not — but this is not the test. The test is whether the professional conduct of non-appointed counsel is so lacking in competence or good faith that it shocks the conscience of the court or prosecutors, and the trial is reduced to a sham, farce or mockery of justice. See Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760, and Barnhill v. State, 247 Ark. 28, 444 S.W. 2d 97. We do not find that situation to have existed in the case now before us, and the judgment of conviction against Pinnell is affirmed.

We come now to appellant Kerr. Counsel for this appellant moved for a severance, and a hearing was conducted on May 5. At such hearing, the prosecuting attorney indicated that the conversation between Pinnell and Chamblee would be introduced at the joint trial of these appellants. At the outset, the court indicated that it agreed that Kerr was entitled to a severance unless Pinnell’s recorded statement could be amended in such a manner as to strike Kerr’s name from the recording. No ruling however was made on that date. The motion was subsequently denied and we think, under the circumstances, the severance should have been granted, or references to Kerr should have been deleted from the statement. The trial court did admonish the jury that the statements of Pinnell were not to be considered against Kerr, but this did not cure the error. The situation is somewhat similar to cross-implicating confessions in a joint trial. In Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971), this court, after citing several cases, stated:

“In those cases it was recognized that, in the circumstances, it was no longer permissible to allow cross-implicating confessions in a joint trial. This procedure impinges upon the basic and fundamental right of a defendant to be confronted from the witness stand by his adverse witness with the accompanying right of cross-examination as is guaranteed by the federal Sixth Amendment. Neither could the prejudicial effect of a violation of this constitutional right be removed by a cautionary instruction to the jury that it should not consider as evidence the admission of a confession against a codefendant. It was further recognized in those cases that the problems which might arise from cross-implicating admissions could be resolved by deleting offending portions which refer to a codefendant. Otherwise, the court should grant separate trials.”

Here, the court knew in advance that transcripts of the recordings would be offered; that these transcripts referred to Kerr, in one instance, Pinnell stating to Chamblee that “he’s [Kerr] the one that handled the whole proposition with you, isn’t he, him and Leo.” And in another instance, Pinnell stated to Chamblee:

“I tell you if I were you I’d stay away from Donald Wayne [Kerr] because if anything ever happens, you know, the boat gets starting to rock - he could inadvertently say something and get everybody in trouble. You know what I mean. And I just wouldn’t go around him and bring it up. I’m not knocking Donald Wayne, hell, I like him as well as anybody, but I know how Donald Wayne is and he gets on that grass, there ain’t no telling what he’s liable to do - and he loves to think that he’s got heat on you, you know.”

The quote from Grooms mentions the violation of a federal constitutional right. Likewise, that same right is provided by our own Constitution, Article II, Section 10, which states that an accused shall have the right “to be confronted with the witnesses against him;” and this right as to Pinnell was not afforded Kerr in this case.

Actually, of course, the evidence of Chamblee himself (if believed by the jury) was ample to convict Kerr, and the additional testimony was not essential to the State’s case as to this appellant. Even the State recognizes that there is a “real question as to whether Pinnell’s mention of Kerr was prejudicial.” We have said on numerous occasions that unless it can be said with certainty that testimony offered against a defendant was not prejudicial, it must be considered prejudicial and the judgment reversed. Sims v. State, 252 Ark. 147, 477 S.W. 2d 825.

Summarizing, in accordance with what has been said, the judgment against Pat Pinnell is affirmed; the judgment against Donald Wayne Kerr is reversed and the cause, as to him, remanded to the Sebastian County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.

         Jackson v. Denno, 378 U.S. 368 (1964).

       This hearing was conducted by a different circuit judge from the judge who tried the case, both being on special assignment from the Chief Justice of the Arkansas Supreme Court.


text:
    Willie Lee SINGLETON v. STATE of Arkansas
    CR 74-38
    510 S.W. 2d 283
    Opinion delivered June 17, 1974

      Harold L. Hall, Public Defender, by: Garner L. Taylor, Jr., Deputy Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

At a jury trial held on October 28 and 29, 1965, Willie Lee Singleton was found guilty of first degree murder and was sentenced to life imprisonment. In March, 1973, he filed a Rule 1 Petition for postconviction relief. At the ensuing evidentiary hearing Singleton was represented by a deputy public defender. After hearing the testimony the trial judge filed findings of fact and conclusions of law denying the petition. The only contention for reversal is the asserted ineffectiveness of Singleton’s appointed attorneys at the original trial.

Singleton was then represented by E. V. Trimble and Allan Dishongh, both of whom were experienced in the trial of criminal cases. Trimble died before the present proceeding was initiated. The only two witnesses at the hearing below were Singleton and Dishongh. Upon their testimony we cannot say that the trial judge’s findings and conclusions are not supported by substantial evidence.

It is first argued that the attorneys’ preparations for trial were inadequate. Upon this point Singleton testified that he talked to his attorneys only once before the trial, for about an hour. Dishongh stated that he did not go to the scene of the crime. In some circumstances those two statements might indicate insufficient preparation for trial, but no such conclusion is necessarily indicated in this case. The petitioner, at the hearing below, had the burden of proof, but he offered almost no details about the homicide of which he was found to have been guilty. Consequently we have no facts to aid us in determining whether counsel were at fault in not conferring more extensively with their client or in not examining the scene of the crime. We certainly cannot hold that counsel’s preparations for trial were insufficient as a matter of law; so this argument fails.

A second contention is that counsel failed to raise certain issues at the trial. Much stress is placed upon the attorneys’ apparent failure to challenge the officers’ probable cause for arresting Singleton. That omission, if it occurred, is immaterial. The court’s jurisdiction to try the accused does not depend upon the validity of the arrest Slitter v. Ponder, 252 Ark. 414, 479 S.W. 2d. 567 (1972); Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96 (1971). It goes almost without saying that a defendant, after having been fairly tried in a court of competent jurisdiction and found guilty of murder, is not entitled to be set free on the basis of some flaw in the manner of his arrest.

It is also insisted that counsel culpably failed to request a Demo hearing upon the voluntariness of Singleton’s confession. Again, we would have to speculate to conclude that this point has merit. Singleton did not say that he had not been given such a hearing. His statement was: “Well, it’s been so long I can’t remember now. I don’t think I did.” He did remember, however, that he had testified on the witness stand that he had been beaten (by the officers). We have held that a defendant may acquiesce in a hearing before the jury rather than in chambers, concerning the validity of a confession. Hill v. State, 250 Ark. 812, 467 S.W. 2d 179 (1971). Hence the present record does not justify us in finding that the attorneys’ course of action was demonstrably ineffective.

Finally, it is insisted that Singleton’s counsel were at fault in not taking an appeal from the original conviction. Singleton testified that he asked Trimble to appeal, but it is of some significance that he did not make that assertion until after Trimble’s death. Dishongh testified that he did not believe that Singleton ever asked him to appeal the case. “If he had, I think I would have. I think we would have found some way to do it. If he asked Mr. Trimble, I don’t know.”

The trial judge, having observed the witnesses as they testified, found no basis for granting relief. We are not in a position to say that he was wrong. Indeed, such a declaration would mean that any prisoner whose conviction had not been appealed would be able, after the death of his attorney, to obtain a new trial simply by saying that his request for an appeal had not been honored.

Affirmed.