author: George Howard, Jr., Justice.

text:
    Jim GIBBS v. Vernie KING
    77-319
    564 S.W. 2d 515
    Opinion delivered April 24, 1978
    (Division II)

      Keith G. Rhodes and Marvin H. Robertson, for appellant.

      Owens & Fikes, for appellee.
   George Howard, Jr., Justice.

We are to decide whether the holding of the trial court, sitting without a jury, that the possession of a Caterpillar D8 tractor, hereinafter referred to as tractor, by appellee is held pursuant to a pledge, as claimed by appellee, rather than pursuant to a sale, as asserted by appellant, is supported by substantial evidence.

THE FACTS

Sometime during the early part of 1973, appellant, Jim Gibbs, acquired a truck from International Harvester Company of Pine Bluff, Arkansas, hereinafter referred to as International, where appellee, Vernie King, is employed as a salesman. Appellant immediately discovered that the truck needed necessary repairs — the replacement of a defective clutch and the repair of the truck’s brakes — in order to make the truck operative upon the highways. Consequently, the truck was returned to International by appellant.

Approximately one month after the truck had been returned to International, appellant was advised that the truck had been repaired and appellant was presented “a pretty big bill.” Appellant decided that he did not want the truck, but appellee persuaded appellant to accept the truck and, as a further inducement to get appellant to keep the truck, appellee loaned appellant $1,250.00 to be applied to the repair bill.

Appellee prepared a financing statement, which was signed by appellant, that identifies appellant as debtor, appellee as the secured party and identifies the property covered as the tractor in question, serial number 8D81776 with the figure “$1,248.05” written on the face of the document. This document was filed with the Circuit Clerk of Jefferson County on March 12, 1973. However, the record does not reflect that a security agreement was ever entered nor was possession of the tractor delivered to appellee at the time the financing statement was executed and filed.

On September 13, 1974, appellee went to appellant’s home at Cabot, Arkansas, and took possession of the tractor. However, before taking possession, a written instrument which is a printed retail order containing blank spaces and used by International in connection with the sale of used vehicles, was executed by both appellant and appellee after certain blank spaces had been filled in by appellee. This written document designates appellant as seller and appellee as purchaser of “1 D8 Cat., serial No. 8D81776” and “1 Set of Rails and Rollers” for a “cash price of $5,000.00” and a down payment of “$1,248.05” with an “unpaid cash price of $4,752.05.” The written document further provides that the unpaid balance shall be paid in “12 installments of $396.00 each.” The document further specifies that “This vehicle is sold ‘As Is’ with no warranty as to mechanical condition unless otherwise endorsed by seller on the reverse side.”

Appellee returned to Star City, Arkansas, with the tractor, but was unable to get it in running condition and discovered that the rollers did not fit the tractor. Moreover, appellee testified, without objection on the part of appellant, that although the written document does not reflect it, there was an understanding between appellant and appellee to the effect that if appellee was successful in making money with the tractor, then and only then, would appellee be obligated to pay for the tractor as evidenced by the written document of September 13, 1974. Appellant emphatically denied that such a condition or understanding existed between the parties.

On September 7, 1977, appellant instituted action in the Circuit Court of Jefferson County seeking judgment against appellee for the unpaid balance due on the tractor.

HOLDING OF THE COURT

“The Court finds in this case that the subject of this lawsuit, this Caterpillar D8 Tractor, was never anything more than a pledge for the indebtedness of Mr. Gibbs to Mr. King in the amount of One Thousand Two Hundred and Forty-eight and 05/100 ($1,248.05) Dollars.”

As a consequence of this holding, appellant-plaintiff’s complaint was dismissed.

THE DECISION

Inasmuch as the trial court in holding that the tractor was simply a pledge for the indebtedness owed to appellee placed “considerable weight on the exhibit of the defendant (appellee), which is a financing statement filed March 12, 1973, the date that the Court finds the money was loaned to Mr. Gibbs by Mr. King,” we deem it advisable from the outset, to discuss the significance and the relevancy of the financing statement as it relates to the issue in this lawsuit.

Under Ark. Stat. Ann. § 85-9-402 (Add. 1961), it is provided in relevant part as follows:

“. . . [A] financing statement may be filed before a security agreement is made or a security interest otherwise attaches ...”

In General Electric Credit Corp. v. Bankers Commercial Corp., et al, 244 Ark. 984, 429 S.W. 2d 60 (1968), we said:

. A financing statement, standing alone, does not create a security interest in the debtor’s property. It merely serves notice that the named creditor may have a security interest.”

Inasmuch as this record is void of any security agreement executed by appellant granting a security interest in the tractor to appellee and the evidence further reflects that appellee did not take possession of the tractor when the financing statement was executed, appellee had no valid security interest in the tractor even though the financing statement, was filed for record in the office of the Circuit Clerk of Jefferson County, Arkansas.

Appellee argues that when he took possession of the tractor on September 12, 1974, some twenty months after the execution and filing of the financing statement, he received the tractor as a pledge to secure the indebtedness owed by appellant to appellee. This argument is neither persuasive nor convincing inasmuch as if we accepted this argument, we would be required to close our eyes completely to the existence of a written agreement prepared by appellee which clearly and conclusively shows that the tractor was delivered to appellee on September 12, 1974, in connection with a sale and purchase agreement made between appellant and appellee. The document sets forth in detail the contract price, designates appellant’s indebtedness owed to appellee as a down payment and the unpaid balance is to be paid out in 12 monthly installments of $396.00 each. These facts do not support a pledge.

Appellee has also asserted rather vigorously that we should not consider or accept the plain meaning of the written document of September 12, 1974, but should accept the testimony of the appellee that there was a condition precedent imposed by the parties orally before the written agreement would become binding on appellee to pay for the tractor; and that we should recognize that many agreements are drawn up by unskilled persons ignorant of the legal rules of construction and as a consequence, many agreements, including the one prepared by appellee, do not embody the entire agreement or express the agreement vaguely and ambiguously. But it must be remembered that appellee was engaged in the business of selling vehicles and frankly stated that he was quite familiar with sales contracts and sales agreements having filled out forms involving sales of vehicles, similar to the one involved in this case, regularly as part of his task as a salesman for International. We are not persuaded that appellee wa# ignorant of the legal obligations and consequences flowing from the terms of the contract that he prepared and executed. Moreover, on the face of the printed form supplied by appellee appears in large bold print “This Vehicle Is Sold ‘As Is’.” Indeed, appellee, who had been employed as a salesman for three years, knew the meaning and significance of this term in commercial transactions.

After carefully reviewing all of the evidence in this case and giving every reasonable inference derived therefrom in the light most favorable to appellee, we conclude that the trial court’s holding is not supported by substantial evidence, and cnnsequently, we reverse and remand this case.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.

      Under Ark. Stat. Ann. § 85-9-203 (Add. 1961, it is provided in material part as follows:
      “. . . [A] security interest is not enforceable against a debtor or third parties unless
      (a) the collateral is in the possession of the secured party;, or
      (b) the debtor has signed a security agreement which contains a description of the collateral.”

        See: Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S.W. 2d 288 (1959) where we said a contract must be strictly construed against the party preparing it.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Clinton H. CARTER v. Shirley CLAUSEN
    77-333
    565 S.W. 2d 17
    Opinion delivered May 1, 1978
    (In Banc)

      Jack L. Lessenberry, for appellant.

      Henry Wilkinson, for appellee.
   Carleton Harris, Chief Justice.

On February 25, 1970, appellee Shirley Clausen filed a bastardy action in the St. Francis County Court. On April 7, 1970, appellant Clinton Carter was adjudged to be the father of appellee’s illegitimate child, and ordered to pay medical expenses plus the sum of ten dollars a week. After numerous motions in the ensuing years, (including contempt for non-payment and requests for increase in payments) the St. Francis County Court, on March 8, 1976, increased the amount of support appellant was to pay to twenty dollars a week. From a May 23, 1977, judgment of the circuit court affirming the county court, comes this appeal.

This entire controversy centers around the amount of support Carter is due to pay for the support of this child. County courts were established by the Arkansas Constitution, Article VII, Section 1. Section 28 declares the jurisdiction of the county courts over bastardy matters as “exclusive original jurisdiction in all matters relating to bastardy.” In Jennings v. Fort Smith District of Sebastian County, 115 Ark. 130, 171 S.W. 920, we pointed out that the county court was created and given jurisdiction for special purposes, and can only exercise such powers as are expressly conferred upon it by the constitution and statutes, “or those that arise by necessary implication from the powers expressly granted.”

The chapter on bastardy proceedings treats the subject of support in detail, but there is no mention of a procedure to obtain an increase or decrease in the amount of support. The statute simply provides that if it is found by the county court that the accused is the father of the child, then the court shall give judgment for a monthly sum of not less than $10.00 per month, for every month from the birth of the child until it shall attain the age of 16 years. The order made in this case originally was for $10 per week, and appellant argues that there was no authority for the amount to be increased to $20 per week; that the county court could only issue one judgment and could not thereafter vary or change the amount. A thorough study of the statutes reveals that it is indeed true that there is no statute authorizing a modification or alteration in the amount from time to time, unlike statutes relating to divorce. Ark. Stat. Ann. § 34-1213 (Repl. 1962) relative to divorce, provides:

“The court, upon application of either party, may make such alterations from time to time, as to the allowance of alimony and maintenance, as may be proper (and may order any reasonable sum to be paid for the support of the wife, during the pending of her bill for a divorce.)”

In other words, the statute gives the chancery court continuing jurisdiction to alter the amounts of alimony or support, if the need arises. But in bastardy cases, as stated, there is no statute that grants this same right to the county court, although, unquestionably, the legislature has the authority to enact such a statute; in fact, several statutory changes have been made from time to time, but none that relate to the point under discussion.

A cursory examination of cases from over the country (8 or 10) reflects that in each instance where the court handling bastardy proceedings modified the support order, there was a statute authorizing this to be done.

In Vol. 10, CJS, Bastards, § 114, p. 196, it is mentioned that “by express statutory provision in some states the court is authorized to increase or reduce the amount to be paid under an order of affiliation.”

Likewise, in Vol. 10 Am. Jur. 2d, Bastards, § 131, p. 938, it is stated: “Some statutes expressly provide that the court may at any time vacate or modify its judgment as justice may require.” and § 132 points out that bastardy proceedings are entirely statutory.

Accordingly, since there is no statutory authority for adjustment of amounts ordered paid, if the county court has such authority, it must be because of the inherent powers granted the court. There is a discussion in Sutherland, Statutes & Statutory Construction, § 55.03 (Sands 4th Ed. 1973), which, inter alia, states:

“. . . Moreover, to authorize the supplying of a power by implication, inference, or presumption of intention, it is not sufficient that the act is advantageous or convenient to the major power conferred, or even effectual in the exercise of it. The power to be supplied by such process must be practically indispensable and essential in order to execute the power actually conferred.
A statute will not be extended to include situations by implication when the language of the statute is specific and not subject to reasonable doubt. ...”

It definitely does not appear that the county court had the inherent power to change the terms of this court order.

The fact that the legislature has passed various acts over the years, some changing the support amounts, or duration of the payments, raising the age of the child from 14 to 16 years, etc., is indicative in itself that no inherent power rests in the county court to modify the payments, for legislation would not be necessary if the court possessed the inherent power to reach these objectives.

As stated in 20 Am. Jur. 2d, Courts, § 78, p. 440:

“The phrase ‘inherent powers’ is used to refer to powers included within the scope of a court’s jurisdiction which a court possesses irrespective of specific grant by constitution or legislation. Such powers can neither be taken away nor abridged by the legislature. But the power a court possesses only by virtue of a statutory grant is not an inherent power.’1

Based on what has been said, we conclude that the county court had no authority to increase the payment from $10 to $20. While, under the present economy, such legislation might well be appropriate and desirable, the fact remains that the statutes presently contain no such authorization.

The judgment is reversed and the cause dismissed.

      Appellant does not dispute that he is the father of the child.

      The record also reflects a motion to transfer equity and an order to that effect. However, the chancery court never again appears in the picture and the transcript continues to show the matter continuing in the county court. For that matter, the transfer was invalid, for we have held that the chancery court is without jurisdiction in bastardy proceedings. See Higgs v. Higgs, 227 Ark. 572, 299 S.W. 2d 837. See also the recent case of Rapp v. Kizer, 260 Ark. 656, 543 S.W. 2d 458.

      For instance, 10 Okl. St. Ann. § 79, under the chapter “Bastardy Proceedings,” provides:
      “The court may at any time, enlarge, diminish or vacate any order or judgment in the proceedings under this article on such notice to the defendant and county attorney as the court may prescribe.”


author: George Rose Smith, Justice.

text:
    Cecil L. WOOLSEY v. ARKANSAS REAL ESTATE COMMISSION et al
    77-347
    565 S.W. 2d 22
    Opinion delivered May 1, 1978
    (Division I)

      Tommy H. Russell and Don E. Tomlinson, for appellant.

      Bill Clinton, Atty. Gen., by: Dave Greenbaum, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1977 the Arkansas Real Estate Commission, after notice and a hearing, revoked the appellant Woolsey’s license as a real estate broker, for cause. Woolsey, in seeking review in the Pulaski Circuit Court, asserted as conclusions of law various statutory grounds for a reversal of the Commission’s decision, such as that the Commission “exceeded its statutory authority,” that the decision “was made upon unlawful procedure,” that the decision was not supported by substantial evidence of record, and that the decision “is otherwise affected by error of law.” See § 13 of the Administrative Procedure Act; Ark. Stat. Ann. § 5-713 (h) (Repl. 1976).

After the record was lodged in the circuit court, counsel for the Commission asked for an early determination of the case, because the revocation of Woolsey’s license had been temporarily stayed by the circuit court. The circuit judge promptly reviewed the complete record, found that the Commission’s action was supported by “very substantial evidence,” and notified the attorneys that the Commission’s decision was affirmed. Some 10 days later Woolsey’s attorneys sent a letter to the circuit judge requesting a hearing and expressing a desire to present additional testimony to the court. Those requests were denied, and this appeal followed.

We see no error. The testimony heard by the Commission has not been abstracted; so we must assume that the circuit court was correct in finding that the decision was supported by substantial evidence. Woolsey was not entitled to present additional evidence to the circuit court, because he failed to make the required statutory showing that the proposed evidence (the nature of which has not even been suggested) was material and that there were good reasons for his failure to present it to the Commission. Ark. Stat. Ann. § 5-713 (f). Finally, as in Bank of Glenwood v. Ark. State Banking Board, 260 Ark. 677, 543 S.W. 2d 761 (1976), we will not remand the cause to the circuit court merely to allow Woolsey to present an oral argument or to submit a brief there. The only issues are questions of law, with respect to which Woolsey has had a full opportunity to present his arguments to this court.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Hour, JJ.


author: George Rose Smith, Justice. Darreli. Hickman, Justice,

text:
    Bobby RUST v. STATE of Arkansas
    CR 77-104
    565 S.W. 2d 19
    Opinion delivered May 1, 1978
    (In Banc)

      Jeff Duty, for appellant.

      Bill Clinton, Atty. Gen., by. Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On September 30, 1976, the appellant, after having unsuccessfully attempted to cash a bad check at a food store, made his escape by threatening a clerk with a gun. Charged with aggravated assault and with the use of a firearm, Rust pleaded guilty to both charges and was sentenced to 3 years’ imprisonment for the aggravated assault and to 5 years’ imprisonment for the use of a firearm, the sentences to run consecutively. For reversal he contends that the enhanced punishment for the use of a firearm should not be applicable, because the use of the firearm was an essential element of the aggravated assault.

The problem is that of determining what the legislature meant by referring to “an element” of the offense in subsection (2) of the firearm statute. Ark. Stat. Ann. § 41-1004 (Repl. 1977). The firearm statute has two subsections and reads as follows:

(1) If a defendant is convicted of a felony and the trier of fact finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 or section 1001 shall be extended by fifteen (15) years.
(2) Subsection (1) shall not apply to a defendant convicted of a felony, an element of which is:
(a) employing or using, or threatening or attempting to employ or use, a deadly weapon; or
(b) being armed with a deadly weapon; or
(c) possessing a deadly weapon; or
(d) furnishing a deadly weapon; or
(e) carrying a deadly weapon.

The appended Commentary, which was before the General Assembly when the statute was adopted, explains the legislative intent in the enactment of subsection (2):

Subsection (2) is necessitated by the fact that a number of Code offenses are graded more severely when a deadly weapon is involved. It is obviously unfair to convict a person of a more serious felony because he has used a deadly weapon and then further increase the penalty for the felony because the deadly weapon was a firearm.

In this connection it should also be noted that in another section of the Code a “deadly weapon” is first defined as a firearm. § 41-115 (4).

As the Commentary explains, subsection (2) of the firearm statute is meant to apply when the Code grades an offense more severely because a deadly weapon is used. The difference between robbery and aggravated robbery illustrates the legislative purpose. Simple robbery is defined as the employment or threatened employment of physical force upon another person with the purpose of committing a theft. It is a class B felony. § 41-2103. Aggravated robbery is defined as robbery committed by one who is armed with a deadly weapon or who inflicts or attempts to inflict death or serious physical injury. It is a class A felony. § 41-2102. Hence one who commits robbery with a firearm necessarily commits aggravated robbery; so enhanced punishment under the firearm statute is deemed unfair.

In the case at bar the offense is aggravated assault. By comparing the statutory definition of aggravated assault with that of assault in the first degree (the next lower grade), it will be seen that the aggravation has nothing to do with the use of a deadly weapon. In fact, a deadly weapon is not even mentioned in the statutory definition of either offense.

§ 41-1604. Aggravated assault. — (1) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.
(2) Aggravated assault is a class D felony.
§ 41-1605. Assault in the first degree. — (1) A. person commits assault in the first degree if he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.
(2) Assault in the first degree is a class A misdemeanor.

Thus the principal difference between the two offenses is that one who commits an aggravated assault must act purposely, but one who commits an assault in the first degree need only act recklessly. That distinction, between purposeful conduct and reckless conduct, is explained in section 41-203 of the Code.

We conclude that the reference in subsection (2) of the firearm statute, to the use of a deadly weapon as “an element” of the offense, means an element as set forth in the statutory definition of the particular offense. Otherwise the firearm statute would be practically a nullity, because it could always be argued — as it is argued here — that the use of the firearm was actually an element of the offense merely because one was used in its commission. The test, however, as we have seen, is whether the statutory definition of the offense refers to a deadly weapon. There is no such reference in the definition of aggravated assault; so the firearm statute is applicable.

Affirmed.

Byrd and Hickman, JJ., dissent.

Darreli. Hickman, Justice,

dissenting. The majority has overlooked, as it must, the definition of a deadly weapon. In doing so it has concluded that the use of a deadly weapon is not an element of aggravated assault.

Apparently the legislature wanted to penalize more severely a person using a firearm to commit a crime than one who did not use a gun or firearm. This is, of course, a valid subject for legislation. However, the legislature did not stop at defining a deadly weapon as a gun but defined a deadly weapon as literally anything capable of causing serious physical injury. Ark. Stat. Ann. § 41-115(4)(b) (Repl. 1977). Applying this definition of a deadly weapon to criminal acts would mean that a person convicted of killing another person using his hands could be sentenced to an additional fifteen years in the penitentiary for using a deadly weapon. Surely this was not the intent of the legislature.

It becomes a matter of semantics, then, as to whether anything which is capable of causing serious physical injury, is an element of aggravated assault. Certainly there is room for doubt.

The majority, rather than using the normal rules of construction of criminal statutes, has in fact become an advocate of the new criminal code and overlooks any imperfections in the code instead of strictly construing its language. Criminal statutes are strictly construed and any doubts are resolved in favor of the defendant. Rowland v. State, 255 Ark. 215, 499 S.W. 2d 623 (1973).

If this were not the third time that the majority has gone out of its way to liberally interpret the code in questionable situations, I might not strongly object. See Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977); Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977). However, it has become clear to me that the majority has no intentions of objectively interpreting the new criminal code and applying the usual standards of judicial review to criminal statutes.

Therefore, I respectfully dissent from the majority. I would reverse the case and remahdit for trial and sentencing without the application of Ark. Stat. Ann. § 41-1004 (Repl. 1977).

I am authorized to state Justice Byrd joins me in this dissent.


author: John A. Fogleman, Justice. Darrell Hickman, Justice,

text:
    Floyd D. STOUT v. STATE of Arkansas
    CR 77-239
    565 S.W. 2d 23
    Opinion delivered May 1, 1978
    (Division I)

      John Barry Baker, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Floyd D. Stout was found guilty of criminal attempt to commit capital murder and sentenced to life imprisonment. See Ark. Stat. Ann. § 41-701, -1501 (Repl. 1977). He relies upon one point for reversal, which really encompasses two separate issues. He first challenges the sufficiency of the evidence to support the verdict. We find it to be sufficient.

Stout was charged with having engaged in conduct that would have constituted, the offense of capital murder and which constituted a substantial step in a course of conduct intended to culminate in the commission of capital murder. Specifically, he was charged with the premeditated and deliberated purpose of causing the death of Frank Upton, a police officer acting in the line of duty, by shooting at the officer with a firearm.

Appellant’s attack upon the sufficiency of the evidence is directed primarily to the issues of premeditation, deliberation and intent. He says that the record is devoid of proof of premeditation, deliberation and intent. The episode arose from an attempt by the police officer, who had stopped Stout for a traffic violation, to place him under arrest on a charge of driving while under the influence of intoxicants. When the officer told Stout he was under arrest, Stout pulled a pistol and told the officer to freeze. As usual in such cases, there are discrepancies, conflicts and inconsistencies in the testimony of the witnesses. Their resolution was for the jury. Scott v. State, 254 Ark. 271, 492 S.W. 2d 902; Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853. Since the jury resolved them against appellant, we must view the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the jury’s finding. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244; Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421. Viewed in that light, the testimony showed:

Stout was operating a motorcycle that belonged to Robert Blevins on College Avenue in Fayetteville, at some time between 12:00 p.m. and 1:00 a.m. There was no license on the cycle and the tail light was inoperable. He had been drinking. (According to his testimony, he had consumed three half-pints of whiskey and about a half dozen 16-oz. cans of beer over a four-hour period.) He had a whiskey bottle in his pocket in which about two shots were left. He was armed with a .38 caliber revolver ,he had stolen from a store he had burglarized in Fayetteville. He carried the weapon for protection, because he “gets in a lot of places and in a lot of positions.” He was on parole from Indiana on a sentence for second degree burglary and his parole extended for an additional two and one-half years. He had come to Arkansas about three weeks earlier to get away from some trouble in Indiana. Officer Upton was patrolling College Avenue alone in a police car near Lafayette Street when he met the motorcycle, which appeared to be weaving and driven a “little strangely.” When he noticed that it had no license and no tail light, he turned to pursue it. Stout saw the police car and knowing that he had no license and that the tail light was not in proper condition, he pulled over, put his motorcycle on the kick stand, removed his leather gloves and helmet, and placed his helmet on the “bike.” Officer Upton saw that the motorcycle had been stopped, so he stopped his patrol car behind it. As Upton was approaching the motorcycle, he saw Stout “hunkered” or “squatted” down beside the motorcycle, as if he were attempting to work on it, and watching the approach of the police car. Upton got out of the police car and walked toward the motorcycle. As he approached it from Stout’s réar, Stout straightened up. The officer asked if Stout had a driver’s license. Upon receiving a negative response, Upton asked if Stout had any identification at all and again received a negative response. Upton then asked Stout what his name was, but Stout just mumbled. Upton thought Stout was saying “Lloyd.” Upton saw the bottle of whiskey in Stout’s right coat pocket and jerked it out. It appeared to the officer to be a whiskey bottle and he assumed that it contained alcohol. At Upton’s request Stout took a balance test. Upton then requested that Stout take an intoximeter test and placed him under arrest for driving while under the influence of intoxicants. Stout pulled his pistol and told the officer to “freeze.” He did this because he did not want to be arrested and because of other things, such as his parole in Indiana and his coming to Arkansas to get away from some trouble there. Upton said that when he was suddenly commanded to stand still, he saw Stout’s gun pointed at him and tried to get it away from Stout by grabbing the barrel but when he was unsuccessful and it appeared that Stout had made a “pass” at taking Upton’s weapon, Upton turned, started to walk away, and, realizing that Stout was not going to run away, broke into a run himself, seeking to get behind the police car. As he started to turn around the car, he felt something strike his right hand which was on the butt of his own pistol, and he felt his gunbelt gouge him in his side and knew he had been shot. Using his right hand, he drew his pistol, the butt of which had been shattered by the shot, raised it, and facing Stout, saw that Stout was still pointing the revolver at him. Upton’s right hand wouldn’t function, so he shifted his weapon to his left hand and fired one shot, just as Stout ran. Stout had fired a second shot at Upton before the officer returned the fire. A bullet fired from Stout’s gun was found on the parking lot of a service station across both College Avenue and Lafayette Street from the scene, where it had fallen after having struck and broken a plate glass window in the service station. This would have been in Stout’s line of fire. Stout testified that he had never said that he did not know what was going on, but that he had a tendency to do violent things when he was drinking and had been drunk to the extent that he was doing things he would not normally do. Upton was polite to Stout, had never threatened or harassed him and was only doing his job. The entire episode took place in a period of two to five minutes. The bullet which struck Upton’s right hand entered a knuckle and exited through his palm. Splinters from the butt of the gun were driven into the palm and had to be removed by surgery. If the bullet had not been deflected by the gun butt, it would have gone into Upton’s stomach and probably his kidneys.

Stout admitted firing the two shots, but said that he was running away from the officer when he did so. He admitted that the officer was not coming toward him when these shots were fired.

Appellant relies upon his retrospective subjective statement that he had no intention of shooting the officer, that the time frame was too short to permit any premeditation or deliberation, that his disavowal of intention to shoot the officer is supported by the fact that he could have shot Upton instead of commanding him to stand still. Upton’s testimony that Stout appeared to want to disarm the officer, and appellant’s own testimony that he fired the two shots over his shoulder as he was running away when he saw the officer reaching for his own pistol. He also argues that, if he had intended to shoot the officer, he had ample opportunity to fire more than one shot as the officer retreated. These arguments were appropriate when they were addressed to the jury, as they undoubtedly must have been.

The jury certainly had a right to believe that Stout intended to go to any extreme to prevent the officer from taking him to the police station under any circumstances and that, when he was unsuccessful in disarming the policeman, who refused to “freeze” at appellant’s command, the decision to take the officer’s life was reached, and might well have succeeded but for the fortuitous circumstance that one bullet was deflected by the policeman’s gun butt and the other strayed from the target.

Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it is used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like. Hamilton v. State, 262 Ark. 366, 556 S.W. 2d 884; Turner v. State, 258 Ark. 425, 527 S.W. 2d 580; Wilson v. State, 258 Ark. 110, 522 S.W. 2d 413, cert. den. 423 U.S. 1017, 96 S. Ct. 451, 46 L. Ed. 2d 388; Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516.

As appellant concedes, premeditation and deliberation can be instantaneous, as it may well have been in this case. Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421. The intent to kill need not have existed for any appreciable length of time and may also be conceived in a moment. Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453; Cook v. State, 225 Ark. 1003, 287 S.W. 2d 6. The evidence of intent, premeditation and deliberation was sufficient, since the jury accepted the state’s version of the incident. See Ford v. State, 249 Ark. 695, 460 S.W. 2d 749; Toung v. State, 158 Ark. 644, 243 S.W. 962.

Appellant contends that the circumstances do not exclude every other reasonable hypothesis other than that appellant acted with premeditation and deliberation. Ordinarily, this determination is for the jury, particularly on the question of the reasonableness of another hypothesis, if the evidence does more than give rise to a suspicion and does not leave the jury solely to speculation and conjecture in determining whether other hypotheses are excluded. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733. On appellate review of the question, we view the evidence in the light most favorable to the state. Abbott v. State, supra. When we do so, and remember that the jury rejected appellant’s version, the evidence is sufficient. See Leonard v. State, 251 Ark. 1090, 476 S.W. 2d 807; McCray v. State, 254 Ark. 601, 494 S.W. 2d 708.

Appellant argues that we should modify the judgment by entering a judgment of guilt of a lesser offense, but what we have already said disposes of that contention. He also argues that we should reduce the punishment, because the jury overlooked a mitigating circumstances, i.e., appellant’s .intoxication. Even though appellant was arrested for driving while under the influence of intoxicants, the officer testified that there was some question about the matter, and this seems to have been the reason he was anxious to have the intoximeter test. He said that Stout seemed to know what was going on at the time. This testimony was corroborated by appellant himself, who testified that he had never said that he did not know what was going on and that he did know what was going on, but panicked. We are not convinced that the jury disregarded a mitigating circumstance.

Appellant also relies upon such cases as Carson v. State, 206 Ark. 80, 173 S.W. 2d 122, which are contrary to our decision in Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518, and for that reason not authoritative. We have made it quite clear that we are not empowered to reduce a sentence within statutory limits in the absence of error in the proceeding, simply because we might think the sentence to be excessive. See Abbott v. State, supra. Not only would doing so be an act of clemency, it would be a substitution of the judgment of a group of appellate judges who had not seen or heard the parties and witnesses for the judgment of a jury and trial judge who had. This is not to say that we have no power to reduce the punishment where we can say that it resulted from passion or prejudice or was a clear abuse of the jury’s discretion. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. den. 429 U.S. 808, 98 S. Ct. 231, 54 L. Ed. 2d 158. We are unable to say that this is such a case.

If, as the jury found, Stout fired his weapon at a retreating police officer, who was merely performing his duty and was admittedly polite to the accused, with the intent to kill him, we cannot say that the punishment resulted from passion or prejudice or that the jury abused its discretion to impose a sentence for a term of five to fifty years or life imprisonment. Ark. Stat. Ann. § 41-703 (1), — 901 (a) (Repl. 1977). The sentence is not so wholly disproportionate to the crime as to shock the moral sense of the community. If either shot fired by appellant had the effect the jury found that Stout intended, the question on punishment would have been between death or life imprisonment. Ark. Stat. Ann. § 41-1501 (Repl. 1977).

We have reviewed other objections made by appellant and find none which merit discussion.

The judgment is affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result reached in this case. However, I must disagree with some of the language in the majority opinion.

The majority uses our decision in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977); cert. denied, 429 U.S. 808, 98 S. Ct. 231, 54 L. Ed. 2d 158, as authority that we retain the power to reduce an excessive sentence caused by passion or prejudice. It may be that we retain that power but I know of no instance where we have exercised it. We have reduced sentences only because of some legal error. See, for example, Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).

Also, the majority is critical of appellant’s use of one of our decisions which was apparently overruled by Osborne v. State, 237 Ark. 5, 372 S.W. 2d 518 (1963). 1 cannot fail to point out that the opinion in Collins also used as authority cases which were just as apparently overruled by Osborne v. State, supra. See Collins, supra at 217.

I feel the better appellate practice is to simply reduce an excessive sentence and say so rather than seek some “legal error” as an excuse to reduce a sentence. Searching the wilderness for error does more harm to our system, in my opinion, than an honest admission by an appellate court that a clearly excessive sentence must be reduced as a matter of justice and fairness; or, as I stated in my dissent to Collins, supra, at 228:

It is not a matter of clemency to correct an injustice; it is simply the law at work.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Jesse BELT et ux
    77-310
    565 S.W. 2d 28
    Opinion delivered May 1, 1978
    (In Banc)

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Lonnie C. Turner and J. H. Evans, of Warren & Smith, for appellees.
   Conley Byrd, Justice.

The first trial in this eminent domain action resulted in a jury verdict for $10,000. We reversed the judgment entered thereon because the trial court refused to permit the condemnor to cross examine the landowner with reference to an eight (8) acre sale for $35,000 that occurred five years after the taking, Arkansas State Highway Commission v. Belt, 260 Ark. 1, 537 S.W. 2d 378 (1976). Upon the trial that is now before us the jury returned a verdict of $11,-000. The condemnor now alleges as ground for reversal that the trial court erred in not striking the testimony of the landowner because of its speculative nature.

The record shows that the landowner testified to damages of $15,000 and that his expert appraisal witness testified to damages of $12,000. Appellant does not question the value given by the expert witness.

The record in the previous appeal shows that the trial court permitted the identical testimony of the landowner to be introduced over the objection of appellant but that appellant did not complain of the court’s ruling on that appeal. It follows that the law of the case precludes appellant from raising the issue now, Woodward v. Blythe, Adm'x, 249 Ark. 793, 462 S.W. 2d 205 (1971).

Affirmed.


text:
    William M. MITCHELL, Sr. et al v. William M. MITCHELL, Jr. et al
    77-371
    565 S.W. 2d 29
    Opinion delivered May 1, 1978
    (In Banc)

      Loh & Massey, Ltd., by: Edmund Massey, and Joe Cambiano, P.A., for appellants.

      Robert E. Irwin, for appellees.
   Conley Byrd, Justice.

This litigation arises out of the will of E. E. Mitchell, Sr. who was survived by four sons: E. E. Mitchell, Jr., Shelby H. Mitchell, James C. Mitchell and William M. Mitchell, Sr. In Mitchell v. Mitchell, 208 Ark. 478, 187 S.W. 2d 163 (1945), we construed item XVIII of the Will as creating a fee tail estate in the four sons. Two of the brothers, E. E. Mitchell, Jr. and Shelby H. Mitchell died in 1974 without bodily heirs and the question arose as to the rights of the two surviving brothers to the use and control of the lands formerly controlled by the two deceased brothers.

The will after setting up a ten year trust to control the lands, here involved, following the testator’s death, provided:

“ITEM 18. At the expiration of ten years being the expiration of the trust period herein, the trust herein shall cease and I will that all my property of every kind, real, personal or mixed and wherever located and then belonging to my estate shall vest in my children herein named who may at that time be living and who shall not have attempted to dispose of or alienate their expectancy in said estate, for and during their natural lives and at their death to go to their bodily heirs; and to and in the legal bodily issue of any who shall have died, each taking in the same proportion as he or she would take and I lived until the time and died intestate. And I will that the personal property be delivered to the said children or their descendants deeding to them jointly all the lands herein reserved together with any other lands which may remain unsold at the time, it being my will that said children share equally in the personal property and real estate remaining in the hands of my said trustees at the termination, of this trust.”

The trial court ruled that the will created four fee tails in common in the lands involved with a contingent remainder in the bodily heirs, if any, of each of the four brothers and a reversion in the testator should any of the four tenants in common die without issue.

The only question before this Court on this appeal is stated by appellants as follows:

“Did this Court, in the former appeal hold that one estate tail or four estate tails were created by the Will of E. E. Mitchell, Sr., deceased?
If the former appeal held that the Will created four estate tails, then the Chancellor’s decision is correct, and should be upheld; however, if only one estate tail was created, the Chancellor’s decision is incorrect and must be reversed.”

In Mitchell v. Mitchell, supra, after quoting from item jf 4 of the Will, which disposed of testator’s “stock and interest in E. E. Mitchell Company,” the issues before the court were stated in this language, to-wit:

This, say appellants Emmett, James, and Shelby Mitchell, being a specific bequest, and the subject matter having been evidenced by corporation stock subsequently cancelled, the legacy lapsed — or, as is sometimes said, there was an ademption.
The decedent owned valuable farm lands in Conway County and elsewhere. Contention, other than that relating to Item IV, is that if the will be correctly construed a fee simple title vests in the four devisees with expiration of the trust period. Items XVI, XVII, and XVIII are copied in the margin.”

After ruling that the dissolution of E. E. Mitchell Company did not amount to an ademption under item § 4 of the will, we then took up the question of whether items 16,17 and 18 vested fee simple title in the devisees after the expiration of the trust. The late Chief Justice Griffin Smith, who wrote the opinion for the Court, after pointing out that the will was not controlled by Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893), then concluded:

“Our conclusion is that in the case at bar an estate tail was created: and this being a life estate, (Pope’s Digest, § 1799) passes the fee to the bodily heirs of the life tenants by operation of the will and not by descent. Not as to the personal property, which vests with delivery.”

As can be seen by the foregoing resume and quotes from Mitchell v. Mitchell, supra, it is obvious that the issues now raised were not before us in the previous appeal, and there was no reason for this Court to decide the issue now raised.

The trial court’s ruling is correct because of Ark. Stat. Ann. § 50-411 (Repl. 1971), which provides:

“Every interest in real estate, granted or devised to two [2] or more persons (other than executors and trustees as such), shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.”

In construing this statute in Cockrill v. Armstrong, 31 Ark. 580 (1876), we stated:

“There can be no question as to the intention of this enactment, and under it we must hold: That it is only where the grant is to executors or trustees, as such, or where by the terms of the grant or devise, a joint tenancy is devised, that a joint tenancy can exist. It is, therefore, not sufficient that an estate be granted or devised to several persons to make them joint tenants. The deed or devise must declare that they are such, in order to bring the parties within the common law rule upon the subject of joint tenancy.”

Thus in Arkansas there is a clear distinction between a tenancy in common and a joint tenancy. As pointed out in Ferrell, Adm’x. v. Holland, 205 Ark. 523, 169 S.W. 2d 643 (1943), the “. . . statute does not prohibit a joint tenancy: it merely provides for a construction against joint tenancy if the intention to create it is not clear.” Needless to say the intention to create a joint tenancy in item # 18 of the will, supra, is not clear. When we look at the other proposition that the statute provides for a construction against a joint tenancy, the trial court had no choice other than the construction placed upon item # 18, supra. When addressing himself to those who should take in the event of the death of one of the sons, the testator stated: . . and to and in the bodily issue of any who shall have died, each taking in the same proportion as he or she would take and I lived until the time and died intestate.”

Furthermore, the trial court’s construction of item # 18, supra, is in accordance with the construction given to such terms by the courts in general. In Dill v. Deavors, Ky., 266 S.W. 2d 788 (1954), we find this statement:

“It appears to be the prevailing rule that where land is conveyed or devised to several persons for life and at ‘their death’ to ‘their children’ or bodily heirs, the phrase ‘their death’ will be read ‘their respective deaths’ and the phrase ‘their children’ or ‘their bodily heirs’ will be read ‘their respective children’ or ‘their respective bodily heirs.’ ”

Having established that the issue now raised was not before this Court in Mitchell v. Mitchell, supra, and that the trial court’s construction is in accordance with the statutory authority of this State and the case law in general, it follows that the judgment must be affirmed.

Affirmed.

      The issues argued in the brief in Mitchell v. Mitchell, supra were: (a) Item § 4 constituted a specific legacy, and (b) do items 16, 17 and 18 vest fee simple title in devisees after the expiration of the trust?


text:
    Joseph H. WESTON v. Harry L. PONDER and Andrew G. PONDER
    77-386
    565 S.W. 2d 31
    Opinion delivered May 1, 1978
    (Division II)
    Appellant, pro se.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker; and Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellees.
   Conley Byrd, Justice.

Appellant Joseph H. Weston on this appeal contends that the trial court erred in holding that appellees Harry L. Ponder and Andrew G. Ponder were privileged as an officer of the court and as a judge of the court, respectively, under the development of the “WELL ESTABLISHED DOCTRINE OF IMMUNITY” from common law procedures. During oral argument Mr. Weston readily acknowledged that defamatory statements by lawyers in judicial proceedings are privileged under some circumstances, Mauney v. Millar, 142 Ark. 500, 219 S.W. 1032 (1920), and that judges are immune from actions for damages for acts committed in the course of their judicial duties, Borden v. State to Use of Robinson, 11 Ark. 519 (1851). However, Mr. Weston contends that the immunity from defamation given to lawyers and judges in general does not apply to the appellees in this case.

The jurisdiction of this Court is limited by the Constitution of Arkansas, Art. 7, § 4, to appellate jurisdiction only — i.e. we do not try anew all litigation but look only to see if the trial court committed an error prejudicial to the person appealing. To aid in the speedy determination of appeals we, as have most other appellate courts, have promulgated Rule 9(d) placing upon appellants the burden of furnishing an abstract of the record consisting “. . . of an impartial condensation,' without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.”

Our problem in trying to understand Mr. Weston’s argument before us is that he has failed to abstract the record in accordance with Rule 9(d) so that we can understand the issues before the trial court and what ruling the trial court made from which this appeal was taken. Appellant’s complete abstract is as follows, to-wit:

“ABSTRACT OF PLEADINGS
Chronologically Arranged and Cross-Indexed to page numbers of the record.
November 5, 1976 — I filed a complaint seeking damages against Harry L. Ponder, Page 1 of accompanying Record.
November 29, 1976 — Demurrer of defendant Harry L. Ponder. Page 6 of the Record.
December 2, 1976 — Order of Chief Justice assigning Judge Harrell Simpson to jurisdiction, page 7 of the Record. This order was NOT placed in the file, and was NOT made available to me until April 12, 1977, as evidenced by a copy of the same order file-marked April 12, 1977, was made available on my demand after Judge Ponder had sat in the March 7 docketing hearing of my case against his brother. Page 16 in the accompanying Record.
Dec. 6, 1976 — My answer to defendant Harry L. Ponder’s demurrer. Page 8 of Record.
May 12, 1977 — My amended pleading, in which I enjoined Judge Andrew G. Ponder as a defendant. Page 13 of the Record.
May 24, 1977 —Judge Simpson’s order of Refusal. Page 17 of Record.
May 26, 1977 — Order of Chief Justice terminating assignment of Judge Simpson. Page 10 of Record.
May 26, 1977 — Order of Chief Justice assigning Chancellor John Lineberger to jurisdiction. Page 11 of Record.
June 3, 1977 — My motion to strike the case from June 6, 1977 docket. Page 19 of Record.
June 8, 1977 — Demurrer of Judge Andrew Ponder. Page 21 of the Record.
June 15, 1977 — My motion to deny demurrer of Judge Andrew G. Ponder. Page 25 of the Record.
July 28, 1977 — Reply Brief of Harry L. Ponder to my answer to demurrer. Page 30 of Record.
September 16, 1977 — Order of Judge Lineberger sustaining demurrers of both of the Ponder boys. Page 34 of Record.
October 15, 1977 — My second pleading. Page 38 of Record.
October 21, 1977 — Demurrer of Harry L. Ponder. Page 40 of Record.
October 22, 1977 — Demurrer of Andrew G. Ponder. Page 42 of Record.
October 22, 1977 — Correction of typist’s error in my re-pleading. Page 44 of Record.
October 26, 1977 — My rebuttal of demurrers of both Ponder brothers. Page 45 of Record.
November 4, 1977 — Order of Judge Lineberger sustaining demurrers of both defendants. Page 46 of Record.
November 14, 1977 — My Notice of Appeal. Page 48 of Record.

Because of Mr. Weston’s failure to abstract the record as required by Rule 9(d) we must affirm the trial court. See Bank of Ozark v. Isaacs, et al, 263 Ark. 113, 563 S.W. 2d 707 (1978), and G. R. Smith, Arkansas Appellate Practice: Abstracting the Record, 3 Ark. L. Rev. 359 (1977). Furthermore, the initial abstracting deficiency cannot be cured in the reply brief as the appellee at that late date does not have the opportunity to supply any deficiencies in the appellant’s abstract, Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W. 2d 101 (1964).

Affirmed.

We agree: Holt and Hickman and Howard, JJ.


text:
    BROWNING’S RESTAURANT et al v. Juanita KUYKENDALL et al
    77-413
    565 S.W. 2d 33
    Opinion delivered May 1, 1978
    (Division II)

      Catlett & Henderson, and Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Wright, Lindsey & Jennings and Tom Forest Lovett, P.A., for appellees.

      Barber, McCaskill, Amsler, Jones & Hale, for cross-appellant, United States Fidelity & Guaranty Co.
   Conley Byrd, Justice.

The Workers’ Compensation Commission found that claimant Juanita Kuykendall, while an employee of Browning’s Restaurant, was totally disabled as a combined result of an injury on February 12, 1973, and a subsequent injury on August 2, 1974. It apportioned the liability for the total disability coverage between the employer’s 1973 carrier, United States Fidelity & Guaranty Co., (hereinafter U.S.F. & G.) and Casualty Reciprocal Insurance Co. (hereinafter Casualty Reciprocal), the employer’s 1974 carrier, on the basis of 75% — 25%, respectively. On appeal to the circuit court liability was apportioned for the two carriers on the basis of 50% for each. The many issues raised on appeal and cross-appeals are hereinafter discussed.

At the hearing before the administrative law judge there was testimony by claimant and her co-workers that clairñant put in a full day’s work before she fractured her left ankle while working for Browning’s Restaurant on February 12, 1973. Claimant and her co-workers testified that after the healing period, claimant returned to work but worked only a four-hour shift. The testimony of the witnesses was that claimant continued to suffer discomfort with her left foot. On August 2, 1974, claimant sprained her left ankle while working for Browning’s. In May of 1975, claimant again returned to work but because of the difficulty with her ankle finally terminated her employment in February of 1976.

U.S.F. & G. as the workers’ compensation carrier at that time accepted liability for the 1973 injury and made its last payment on July 10, 1973. Following the 1974 injury Casualty Reciprocal accepted liability and paid all applicable benefits including payment for a 25% permanent partial disability to the left leg below the knee.

Dr. Logue, Mrs. Kuykendall’s treating physician from 1966, testified that in his opinion Mrs. Kuykendall had completely recovered from her 1974 injury and that the cause of her now total disability was the 1973 injury. In arriving at his conclusions Dr. Logue readily recognized that Mrs. Kuykendall had worked a four-hour shift at Browning’s Restaurant following the 1973 injury until the 1974 injury.

The administrative law judge ruled that the claim against U.S.F. & G. was barred by the statute of limitations and held Casualty Reciprocal responsible for the full total disability. Whjle the matter was pending on appeal before the Workers’ Compensation Commission, Dr. Logue wrote a letter to counsel for some of the petitioners before the full Commission stating:

“In reviewing the deposition, it is my feeling that on several occasions I did, in fact, specifically state that I found no demonstrable relationship between the August incident (as opposed to the 1973 fracture and previous injuries) and Mrs. Kuykendall’s present condition. To the extent the Administrative Law Judge’s opinion finds otherwise, I must, of course, disagree from a medical standpoint.”

Over the objections of U.S.F. & G. the commission permitted this letter to be introduced into evidence.

For purposes of this appeal and cross-appeal all parties concede that Mrs. Kuykendall is totally disabled.

1. In accordance with Tri State Ins. v. Employers Mutual Liability Ins., 254 Ark. 944, 497 S.W. 2d 39 (1973), we hold that the apportionment of liability between insurance carriers, where the combined effect of a previous and a subsequent injury causes a disability, is a factual determination to be made by the Commission. Furthermore, in view of the fact that Mrs. Kuykendall was able to work a four-hour shift following the 1973 injury and prior to the 1974 injury, we cannot say that there is no substantial evidence to support the Commission’s apportionment, on the basis of 75%— 25%, between U.S.F. & G. and Casualty Reciprocal. It follows that the circuit court was in error in making a 50% — 50% apportionment.

2. Under Ark. Stat. Ann. § 81-1318 (Repl. 1976), the limitations therein stated run in favor of the employer, and a workers’ compensation carrier cannot claim the benefit thereof unless the limitation has also run in favor of the employer. It follows that the Commission properly held that the liability of U.S.F. & G. was not barred by the statute of limitations.

3. Since the Commission, upon substantial evidence, found that Mrs. Kuykendall’s total disability resulted from the combined effects of the 1973 and 1974 injuries, it follows that it correctly determined that the payment of permanent and total disability benefits is limited in accordance with Ark. Stat. Ann. § 81-1313(f)(1) (Supp. 1976). See Wooten v. Mohawk Rubber Co. et al, 259 Ark. 837, 536 S.W. 2d 734 (1976).

4. In finding that the responsibility of the two carriers should be apportioned on a 75% — 75% basis, the Commission in awarding permanent total disability was met with the problem of allowing credit to Casualty Reciprocal for the amount of the permanent partial disability previously paid. We cannot say that the Commission erred in directing U.S.F. & G. to compensate Casualty Reciprocal for its pro rata share of the total permanent disability already paid. Otherwise, U.S.F. & G. would get a free ride at the expense of Casualty Reciprocal for the permanent partial payments already made to Mrs. Kuykendall.

5. U.S.F. & G. complains that the Commission erred in admitting into evidence the letter from Dr. Logue written subsequent to the findings of the administrative law judge. As we view the matter, the letter, which was more in the nature of advocacy than a medical opinion, was of questionable admissibility. However, since the opinion of the Commission shows that the letter was disregarded for purposes of arriving at its decision, we cannot see how U.S.F. & G. is entitled to complain.

Reversed and remanded with directions to enter an order affirming the Workmen’s Compensation Commission.

We agree.

Harris, C.J., and Hickman and Howard, JJ.


author: Conley Byrd, Justice. Carretón Harris, Chief Justice, John A. Fogleman, Justice,

text:
    Pamela HAMMERS v. STATE of Arkansas
    CR 78-5
    565 S.W. 2d 406
    Opinion delivered May 1, 1978
    (In Banc)
    [Rehearing denied June 5, 1978.]

      Hanks & Taylor, Clayton, Mo., and Wilson & Wilson, by: Ralph Wilson, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Jessee L. Kearney, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Following the remand of this case in Hammers v. State, 261 Ark. 585, 550 S.W. 2d 432 (1977), after a hearing the trial court ruled that appellant Pamela Hammers was not entitled to relief on equitable principles and reinstated her murder conviction. We reverse for the reasons hereinafter stated.

The record, based upon the testimony of appellant’s counsel, the deputy prosecuting attorney and the prosecuting attorney shows that appellant had an agreement with the State for immunity from prosecution provided she would give testimony against her lover Eddie Stephens in accordance with a tape recorded statement she had given to the State on the evening of November 4, 1975. Appellant was in court ready to testify on both November 5th and 6th when the case against Eddie Stephens was continued because Thomas Griffin, a witness the State had failed to subpoena, was not present. On the morning of November 6th, in response to inquiry by appellant’s non-resident counsel, the deputy prosecuting attorney stated that the promised immunity would hold even if Stephens should “cop out and plead guilty.” The prosecuting attorney confirmed the deputy’s agreement while admitting that he did not believe appellant’s statement at the time.

The record shows that appellant had every right to rely upon the agreement consummated with the State and that she was not notified of anything to the contrary until after the State had obtained a guilty plea from Stephens and his agreement to testify against appellant.

During the testimony of the deputy prosecuting attorney, the trial court asked the following question:

“Q. ... At the time that you returned this statement and elected to prosecute Pamela Hammers, as far as you know, Pamela Hammers was still ready, willing and able to take the stand if called to testify to the facts set forth in her statement, whether it be true or false or whether the jury might believe it or not believe it?
A. Yes, sir, I had no reason to believe that she was not going to appear. I had no tangible reason to believe she would not testify. I had my own personal opinion but I felt like that we still had testimony coming from Pamela Hammers for whatever it was worth.”

The prosecuting attorney testified that he believed appellant and her attorney had something to do with the disappearance of the witness Thomas Griffin in November of 1975 and that the State was conned by appellant.

The record shows that when Thomas Griffin first disappeared, the prosecuting attorney subpoenaed Eddie Stephens’ mother to determine why Griffin absented himself, but she at that time took the Fifth Amendment. However, after Stephens pleaded guilty, his mother testified that appellant’s attorney told her she had to get Griffin out of town. Appellant’s counsel denied making any such statement to Stephens’ mother and pointed out that he had refused to represent Stephens. Appellant’s counsel also noted that it was not in the best interest of his client for the witness to be absent.

The deputy prosecuting attorney, who located Griffin to testify against appellant, admitted that Griffin stated that appellant’s counsel had nothing to do with his disappearance. The record also shows that, as late as 11 :00 p.m. before the witness’ disappearance, the State was on notice that Griffin was scared and that he had been receiving some phone calls from Stephens’ mother. Even then the State did not fake the precaution of getting a subpoena served on Griffin.

On the record before us it is shown that the State, through its officials, made a bargain with the appellant for her testimony; that appellant stood ready and willing to testify at all times; and that the State took full advantage of the bargain until after Stephens entered his plea of guilty and promised to testify against appellant. Thus, we see that at all times appellant was entitled to rely upon the promise of the public prosecutor until after Eddie Stephens was convicted on a guilty plea and after he had the advantage of knowing what her testimony was going to be. It follows that the trial court erred in ruling that she was not entitled to immunity on equitable principles.

It has been suggested that the trial court should be affirmed because Eddie Stephens testified that: “She told me, setting in the back of the courtroom, I believe it was November 6th, I was to go to trial, ... ‘I am not going to testify.’ She was to be granted immunity and I would be acquitted.” If a negotiated grant of immunity can be set aside upon such uncorroborated testimony by a codefendant, after the codefendant has successfully negotiated a reduced sentence, then counsel will never be able to safely advise his client to give testimony in exchange for a grant of immunity. We note that the State, in making its decision to prosecute appellant as set out above, readily acknowledges that she stood ready to testify at all times.

As pointed out in People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973), it is a fact of life that the quality of veracity and honor among thieves and murderers leaves something to be desired, and the prosecuting attorney, upon whose shoulders the problem first falls, may find that in granting immunity to one he could have prosecuted he has exchanged gold for brass. Yet, on the other hand, it is sometimes the heavy persuasion of family and friends that finally convinces one charged with a crime that he or she should exchange testimony for a grant of immunity. In the last analysis, such matters must be considered from the standpoint of some standard applicable to the State as a whole for it is sometimes necessary to have the testimony of a codefendant to solve even the most heinous crime.

Reversed and dismissed.

Harris, C.J., and Hickman, J,, concur.

Fogef.man, J., dissents.

Carretón Harris, Chief Justice,

concurring. I concur with the majority in this reversal because I simply feel that the State should have lived up to its agreement. As I understand the agreement entered into between the deputy prosecutor and counsel for Pamela Hammers around November 3 or 4, 1975, said agreement was that if Pamela Hammers testified at the trial of James Eddie Stephens, the other defendant, to be held on November 5, to the same facts previously related to the prosecutor, she would be granted immunity from prosecution. To me, the sole question is whether there was such an agreement, and in my view it clearly appears that the answer would be in the affirmative.

Under questioning by the court, the Deputy Prosecuting Attorney testified that counsel for Hammers (Mr. Hanks) asked him if they had a “deal” and he answered “Yes;” that Hanks further asked, “Do we have a deal if Eddie pleads guilty?” and he (deputy prosecutor) replied, “Yes.”

Stephens was not tried on November 5 because of the absence of a witness, but 1 am unable to see how this affects the agreement herein referred to. There is no evidence that Ms. Hammers was responsible for the absence of the witness, or had anything whatsoever to do with his failure to show up for the trial. In fact, he was not even subpoenaed by the state (which I cannot at all understand). The deputy testified that he was a little dubious that appellant was being entirely truthful — but nonetheless, the agreement was consummated. It is my feeling that if there was doubt that Ms. Hammers was telling the truth — then the agreement should not have been entered into until the true facts were ascertained. And I might add that I am unable to see why a lie detector test taken by Stephens indicating that appellant had not been entirely truthful is pertinent to the issue before us.

Of course, except for the fact that Stephens pleaded guilty (apparently after learning that Ms. Hammers was due to testify against him), there is every indication that he would have been tried and Hammers would have testified; at least, there is no showing to the contrary.

To permit the defendant to be tried when she apparently stood willing to do all that she had agreed to do. simply because the other defendant had decided to plead guilty, making her testimony unnecessary, is, to me, not only unwarranted, but could seriously damage negotiations between prosecutors and defense attorneys in the future.

I am authorized to state that Justice Hickman joins in this concurrence.

John A. Fogleman, Justice,

dissenting. I was somewhat amazed when counsel for appellant suggested de novo review in oral argument before this court, even though he knew of no authority for such an approach in a criminal case. Amazement turned to shock when the court accorded appellant that type of review, also without authority for that sort of action.. Passing upon the credibility of the witnesses, as the majority has done, is also without precedent.

In viewing the matter it is necessary that we first consider the holding on the first appeal. It is capsuled in the following excerpt from the opinion in Hammers v. State, 261 Ark. 585, 550 S.W. 2d 432:

But the determination of a claimant’s equitable entitlement to immunity, when opposed by the prosecuting attorney, should lie within the sound judicial discretion of the trial court, which should see that the public faith pledged by the public prosecutor, in the: furtherance of justice, is kept by giving due regard to promises and inducements made and held out by him, when the claimant has fulfilled his agreement in good faith. ***** It is appropriate to consider the extent of the claimant’s performance of the bargain. ***** In doing so, it should be remembered that the primary purpose of the exchange is to facilitate the prosecution of crime, not to grant immunity. *****
Although the state is not estopped by the unauthorized act of its agent, ***** appellant should be equitably entitled to have her agreement with the prosecutor enforced if she complied with its terms in good faith and made a full, fair, free and candid disclosure of all facts pertaining to the crimes charged, even though that requires barring her prosecution for the crimes. There does not seem to be any doubt about her being ready, willing and able, but not called upon, to testify. The burden of proving the agreement and appellant’s compliance with it rested upon her. ***** [Emphasis mine.]

It must then be remembered that appellant had the burden of proving that she complied in good faith with her agreement with the prosecuting attorney and made a full, fair, free and candid disclosure of all facts pertaining to the crimes charged. The trial court, after hearing the evidence, rendered this opinion:

From the totality of the facts and circumstances developed during this hearing concerning the agreement negotiated by the defense and the prosecuting attorney’s office, it is the judgment and finding of the court that the defendant, Pamela Hammers, is not entitled on equitable principles as laid out in the Supreme Court opinion on May 16, 1977, styled Pamela Hammers v. State of Arkansas. Therefore, it is the order and judgment of the court that the judgment of conviction and sentence to a term of eight years will be and is hereby reinstated.

This has been an unusual case from the beginning. It is now decidedly unique. In order to reach a result it apparently considers desirable as a matter of public policy in prosecutorial deals with accomplices, the majority has given de novo review to the trial court’s action on disputed evidence, made credibility determinations and completely ig-. nored the law of the case. The court should be at least as concerned about the stability of appellate judicial decisions and. for the consistent observance of the limited scope of appellate review, as it is about the ability of a lawyer to advise his client to give testimony for a grant of immunity.

In this case, there was an exercise of the trial court’s judicial discretion. The court’s finding was, in effect, a-holding that appellant had failed to meet her burden of proof. Of course, we should not reverse the trial court’s action unless there was a manifest abuse of the court’s discretion. This' does not involve, require, or permit de novo review. The only situation in which our review of the action of a circuit court in a criminal case even approaches de novo review is the very isolated instance of review of the trial judge’s determination of the voluntariness of a confession, imported into our law in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293, cert. den. 393 U.S. 941, 89 S. Ct. 308, 21 L. Ed. 2d 278. In retrospect, it is clear to me that we were not required to take this step, as we thought when Harris was decided. See Vault v. State, 256 Ark. 343, 345, 507 S.W. 2d 111, 113 (Fogleman, J., concurring). Not only was it not necessary that we broaden the scope of review in that particular question, its implementation proved quite troublesome. (See Vault v. State, Fogleman, J., concurring, supra.) After floundering in this unprecedented sea of uncertainty, we finally settled on a standard of review in Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. Still, even in Harris we said:

***** That does not mean that the findings of the trial judge must be shunned. They are entitled to considerable weight in resolving evidentiary conflicts and to respectful consideration on the crucial issue of voluntariness.

In Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56, we gave “appropriate, but not controlling weight to the findings of the trial judge.” In Watson v. State, 255 Ark. 631, 501 S.W. 2d 609, in spite of a reversal, we resolved conflicts in the evidence in favor of the trial judge’s holding.

We also said in Watson that we must view the testimony in the light most favorable to the court’s holding. So even if we should follow the Harris rule in this case, we must view the evidence in the light most favorable to the state and resolve conflicts in the evidence in favor of that ruling.

Before proceeding, however, to a view of the evidence, I should point out that even the Harris scope of review is not appropriate here under our previous decisions. I would first review our holdings with reference to a trial court’s fact-finding, as I did in concurring in Vault, viz:

We long held that the findings of fact by a circuit judge on any question properly submitted to him would not be set aside on appeal if supported by substantial evidence. Bank of Atkins v. Wirth, 209 Ark. 360, 190 S.W. 2d 445; Ward v. Nu-Wa Laundry Cleaners, 205 Ark. 713, 170 S.W. 2d 381; Matthews v. Clay County, 125 Ark. 136, 188 S.W. 564; Cady v. Pack, 135 Ark. 445, 205 S.W. 819; French v. State, 187 Ark. 782, 62 S.W. 2d 976; Beason v. State, 166 Ark. 142, 265 S.W. 956; Decker v. State, 85 Ark. 64, 107 S.W. 182. We once said that when circuit courts are required by law to pass upon questions of fact, the findings are as conclusive on appeal as the verdicts of juries. Cady v. Pack, supra; French v. State, supra. The substantial evidence rule has been applied in other cases in which deciding a factual question has been essential to a determination whether the proper foundation has been laid for admitting evidence. See Ruloff v. State, 142 Ark. 477, 219 S.W. 781. *****

Where action lies within the judicial discretion of the trial court, there is little if any difference in our treatment of the court’s fact-finding. Of course, all presumptions are indulged in favor of a trial court’s ruling. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377. Thus, we must indulge every presumption in favor of the proper exercise of the trial court’s discretion. See McClain v. State, 165 Ark. 48, 262 S.W. 987. Furthermore, in any feature of a case presenting an issue of fact, upon which the testimony is in conflict, the trial court is the safe judge of the weight of the evidence and the credibility of the witnesses and its finding is conclusive, even though we may regard its finding to be clearly against the decided weight of the evidence. Fairbanks v. State, 155 Ark. 48, 243 S.W. 950; Frame v. State, 73 Ark. 501, 84 S.W. 711; Decker v. State, 85 Ark. 64, 107 S.W. 182; Harris v. State, 177 Ark. 186, 6 S.W. 2d 34. See also, Groning v. State, 155 Ark. 85, 243 S.W. 959. The trial judge’s finding on any question of fact submitted to him is as conclusive in this court as the finding of a jury. Hooper v. State, 186 Ark. 1197, 57 S.W. 2d 810; Fogg v. State, 81 Ark. 417, 99 S.W. 537.

In matters involving the exercise of the trial court’s discretion, we defer to the trial judge’s evaluation of credibility in reviewing the evidence, because the judge “who hears the testimony and observes the demeanor of the witnesses, while on the stand is in a much better position to judge the credit that should be given their statements, than this Court could possibly be.” Parnell v. State, 206 Ark. 652, 176 S.W. 2d 902; Mullen v. State, 193 Ark. 648, 102 S.W. 2d 82. See also, Fikes v. State, 221 Ark. 81, 251 S.W. 2d 1014. Where there are conflicts in the testimony on the issue this court should not hold that there is an abuse of discretion, for the finding of the trial court is conclusive. Pendergrass v. State, 157 Ark. 364, 248 S.W. 914. See Robertson v. State, 212 Ark. 301, 206 S.W. 2d 748.

Where the evidence is in conflict, it is not our province to determine the issues of fact raised. Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624, cert. den. 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977. See also, Elser v. State, 243 Ark. 34, 418 S.W. 2d 389.

Viewed in the light most favorable to the court’s holding, the record discloses:

Appellant’s leading counsel, a Missouri attorney, was employed sometime in August, 1975. He questioned his client about what had happened. He ascertained that there were no witnesses he could present in her behalf. Eddie Stephens called this attorney in September, 1975, seeking to employ him. The offer was declined by the attorney, who felt that the interests of Pamela Hammers and Stephens could conflict. He told Stephens that he could refer him to another attorney and expressed the opinion that it would cost Stephens $15,000 to employ another attorney. The attorney told Stephens to keep his mouth shut. At this time this attorney knew nothing about Griffin, a key witness for the state, except that his name was endorsed on the information in the case as a witness, that Griffin was from California, and that the state intended to have this witness at the trial. He had the benefit of a police report in respect to Griffin. Pamela Hammers was released from jail in the latter part of September, 1975. She had made some statements to the sheriff about her role in the murder, which were not completely truthful, due to the fact that she did not have a lawyer at the time (according to her). On or about October 27, 1975, either Mae Holcott (Stephens’ mother) or her daughter called this attorney about representing Stephens. Mrs. Holcott also asked about a lawyer for $15,000, but appellant’s attorney told her that he would refer them to an attorney and estimated his fee at $15,000.
At some time after the Missouri attorney was employed, he became interested in obtaining a grant of immunity for his client in exchange for her testimony against her co-defendant Stephens. Appellant’s attorney had never before entered into a transaction for one co-defendant testifying against another when they were jointly charged. He was of the opinion that the state’s case was very weak, if neither of these co-defendants testified against the other. He entered into negotiations because he felt that a trial for murder in the first degree was too great a chance to take with the life of a young girl. He filed a motion for severance just before he came to Blytheville for the trial. It was granted on the day that Miss Hammers made her statement. Negotiations between appellant’s attorney and the prosecuting attorney’s office started after the motion for severance was granted. The attorney came to Blytheville in November, 1975, two days before the trial was to. begin. It took quite a bit of negotiations before an agreement was reached. On that evening the Missouri attorney, the deputy prosecuting attorney, the sheriff, Pamela Hammers and her stepfather met at the Ramada Inn where the attorney was staying and discussed the matter. The prosecuting officers did not know what her statement would be, but appellant’s attorney assured them it would be sufficient to convict Eddie Stephens of first degree murder. An agreement was reached to the effect that appellant’s statement would be taken, and, if it proved sufficient, and, if she then agreed to testify, the prosecuting attorney would file a memorandum with the court requesting the court to grant her immunity. After the statement was taken, appellant’s attorney was advised that, at the close of her testimony, the prosecuting attorney would file a memorandum with the court, requesting that she be granted total immunity. The deputy prosecuting attorney told appellant’s attorney at this time that he was not convinced that she would ever get on the witness stand and testify according to the statement. Up until this occasion, appellant had not made any admission, confession or factual narrative concerning the crime. The deputy prosecuting attorney knew that appellant had made prior inconsistent statements to the Mississippi County sheriff and to persons in California. The case was scheduled to go to trial on the day following the giving of the statement.
Mae Holcott called the Missouri attorney at his motel room after the Hammers statement had been given, but on the same night. Appellant’s attorney had talked to Thomas Griffin at the Holiday Inn in Blytheville. The attorney said to her, “I thought you said Thomas wasn’t going to be here, but he is here. He has been since last Friday . . . out at the Holiday Inn under an assumed name . . . Thomas is going to testify. You have to get him out of town tonight.” The attorney told her that, in his opinion, Stephens would be found “guilty of murder if Griffin testified against him.” She called Griffin, but learned that the deputy prosecuting attorney was in his room. She told Griffin that it was up to him, that he would have to decide for himself what to do because she couldn’t advise him. She called Griffin back later^ but the deputy prosecuting attorney was still in his room. Still later, Griffin came to her house and was extremely nervous, and said that appellant’s attorney had really upset him. Mrs. Holcott called appellant’s attorney again, with Griffin on the extension. The attorney again told her to get Griffin out of town that night, because the prosecuting attorney and deputy prosecuting attorney were fools and had not subpoenaed Griffin during the four days he had been in town. He told her to tell Griffin to leave the plane ticket and car keys, and to pay his room rent for the time he was there. He also stated that, under Arkansas law, a witness who was a thousand miles away could not be brought back by the state. On the following day appellant’s attorney called Mrs. Holcott at her place of employment and told her he thought Griffin had left town. The attorney knew that the trial had not started, but did not know that Griffin had left. He did tell her that he was going back to St. Louis and that he did not want to talk to her or Eddie anymore and didn’t want to see her in the courtroom.
After appellant’s attorney had talked with Griffin, the deputy prosecuting attorney talked with him on the night before the case was set for trial. Griffin was extremely nervous. He was afraid that the evidence would disclose that he was and had been a homosexual. Although Griffin said that neither appellant nor her attorney.had told him tó leave town, he said that this attorney had “scared the hell out of me about what he is going to do up there in court,” and that somebody had tried to encourage or advised him to leave and not be available to testify. During this conference, Griffin had two telephone conversations. One of them seemed to upset him tremendously. When he told the deputy prosecuting attorney that the conversation was with Mrs. Holcott, the deputy prosecuting attorney asked if someone was trying to tamper with his testimony. Griffin replied that he did not know, that he did not understand it, that he was frightened and didn’t know what to do.
The day the case was set for trial, the sheriff told the deputy prosecuting attorney that Griffin was gone and had left the plane ticket and the keys to the car provided him by the state. The state then asked for a continuance for a day, but when Griffin could not be found, moved for and was granted a continuance for the term.
On the day the case was originally set for trial, appellant’s attorney talked with Eddie Stephens in the jury room. He had already talked with Griffin and knew that Griffin was going to testify. He expressed to Stephens his opinion that if Griffin did testify as he had indicated to this attorney and to Stephens' attorney, Stephens would probably be convicted of first degree murder and advised him to make a deal with the prosecuting attorney for something less. Stephens told this attorney that he did not think Griffin would testify and asked appellant’s attorney to call Mrs. Holcott, as he did. Stephens asked appellant’s attorney to find out where Griffin was and ascertain whether there wasn't some way Griffin would leave. The attorney told Stephens that Griffin was at the Holiday Inn. Appellant’s attorney did not tell Stephens that Miss Hammers was going to testify against him.
Pamela Hammers talked with Stephens in the court room on the day the case was continued for the term. Stephens had learned on the original date the trial was to commence that Griffin had left town. Miss Hammers told Stephens she wasn’t going to testify. She said that she was to be granted immunity and that he would be acquitted.
Thereafter, the attorney for Stephens, who had been insisting that Stephens’ version of the killing was true, finally prevailed upon the deputy prosecuting attorney to submit Stephens to a polygraph examination in Little Rock. On March 6, 1976, the deputy prosecuting attorney asked the Sheriff to take Stephens to Little Rock for that purpose. The test was conducted by a polygraph examiner for the Arkansas State Police. He determined that Stephens had told him the truth and showed deception only on negative answers to questions about his strangling the victim and about his intention to lie to the examiner on the test.
After the polygraph test, the deputy prosecuting attorney reviewed the results and concluded that Miss Hammers had not been completely truthful in her statement and that her role in the crime had been much greater than she had indicated. He took a statement from Stephens on March 11, 1976, in which Stephens implied that he had had a strong interest in trying to get Griffin out of the state and that there had been some tampering with Griffin. He implicated appellant's attorney by indicating that Mrs. Holcotf had information about conversations with this attorney. The deputy prosecuting attorney then subpoenaed Mrs. Holcott. In spite of the fact that she had pleaded her Fifth Amendment rights on every question addressed to her by the prosecuting attorney when subpoenaed shortly after Griffin’s disappearance, she made a complete statement about her role and the role of Stephens and others in this respect.
The deputy prosecuting attorney concluded that “we were being conned” and couldn’t see “ganging up on Eddie Stephens and allowing Miss Hammers to walk free” and that Miss Hammers was trying to “help FLddie out the back door.”
The testimony of Griffin was corroborative and neither of the co-defendants could have been convicted without the testimony of the other or without the testimony of Griffin. The prosecuting attorney and his deputy concluded that Miss Hammers had not been truthful in her statement and that she had not acted in good faith. In March, 1976, they returned the statement to appellant’s attorney, destroyed the tape and advised appellant’s attorney that the case against her was being set for trial. The statement was not used at her trial. On Tuesday, March 4, 1976, appellant, in a telephone conversation, had said that she wanted Mrs. Holcott to keep Griffin out of town.

Although appellant’s attorney testified that his conversation with Griffin was carried on in the presence of Stephens’ attorney, a Blytheville lawyer, this lawyer was not called as a witness. Appellant’s attorney, who had talked with Mrs. Holcott, did not cross-examine him, but left that to his local co-counsel, who had not participated in any of the negotiations or any of the conversations with the interested parties. It is true that the appellant’s attorney denied ever telling Griffin to keep his mouth shut, denied the content of his conversation with Mrs. Holcott as stated by her (although he admitted having had conversations with her at approximately the times indicated by Mrs. Holcott) and denied any knowledge of any conversation between appellant and Mrs. Holcott. It is also true that appellant denied that she had made the statements attributed to her by Mrs. Holcott and by Stephens. She admitted having conversed with Stephens in the courtroom, but says that she told him she was going to testify against him. Even so, the question of credibility of the witnesses was a matter for the trial court’s determination, and the majority has given no valid reason for rejecting the testimony of Stephens and Mrs. Holcott on appellate review.

On this record, the trial judge had a basis for finding that the negotiation for immunity and the disappearance of Griffin were part and parcel of the same transaction and that appellant did not enter into the negotiations or the agreement in good faith. He also had a basis for finding that Pamela Hammers did not make a full, free, frank and candid disclosure of the true facts in the case. It is quite true that the trial court might have, in the exercise of sound judicial discretion, reached the result reached by the majority. But that does not mean the trial judge erred. The exercise of this discretion was for the trial court, not this court. The majority has carefully avoided saying that the trial court abused its discretion. How could it? Was it an abuse of discretion to believe Stephens and his mother and not an attorney?

We admonished the trial court to remember that the primary purpose of such a bargain is to facilitate the prosecution of crime and not to grant immunity. The majority has not heeded that admonition.

Of course, I would affirm the judgment.

      It is, to say the least, unusual to assert or imply that one defendant (untested) has lied, based on utilizing the lie detector lest on another defendant (who pleaded guilty to second degree murder).


author: Frank Holt, Justice.

text:
    GENOA CENTRAL SCHOOL DISTRICT NO. 1 v. BOARD OF EDUCATION OF MILLER COUNTY et al
    77-313
    565 S.W. 2d 129
    Opinion delivered May 1, 1978
    (In Banc)
    [Rehearing denied May 30, 1978.]

      Smith, Stroud, McClerkin, Conway & Dunn, by: Hayes C. McClerkin and James N. Nutt, for appellant.

      Ned A. Stewart, Jr. and Damon Young, of Young, Patton & Folsom, for appellees.
   Frank Holt, Justice.

The Texarkana School District No. 7, pursuant to Ark. Stat. Ann. § 80-412 (Repl. 1960), petitioned appellee, Miller County Board of Education, to change the boundary line between it and appellant, the Genoa School District No. 1. The change would result in taking a 35.06 acre tract of land from the Genoa District and adding it to the Texarkana District. Appellant sought relief from the Miller County Circuit Court by way of a writ of certiorari to quash the order of the Board on jurisdictional grounds and by appeal. Two (appellees here) of the three landowners of the 35.06 acres intervened in circuit court and supported the proposed change of boundary and the transfer of the property from the Genoa to the Texarkana District. The court denied the writ and affirmed the Board’s action. In doing so the court determined the “sole question before the Court was whether or not the lands in question were of a substantial nature.” The court found the Genoa District consisted of “some 52,000 acres;” the land in question, 35.06 acres, comprised only .0006 of 1% of the total district; and its assessed valuation was “minimal in comparison to the assessed valuation of the Genoa District.” Based upon these findings, the court concluded the proposed change was not a “substantial alteration.”

Appellant contends the court erred in denying its petition for a writ of certiorari to quash the Board’s order and finding the evidence sufficient. We need only to discuss the jurisdictional issue. It is appellant’s argument that the 35.06 acres alteration in the Genoa District amounts to a substantial boundary change and in effect is an annexation of a part of its territory. Therefore, appellant says the Board should have proceeded under Ark. Stat. Ann. § 80-404 (Repl. 1960) which, inter alia, requires the consent of a majority of the electors in each District. Also that Ark. Stat. Ann. § 80-405, 408 (Repl. 1960) requires publication of notice. Appellant argues that the Board’s failure to comply with the recited statutory requirements deprived it of any jurisdiction to order the annexation.

Appellees respond that the transfer of the property here is of a de minimus nature and, therefore, the County Board properly proceeded under § 80-412 which requires no notice. It is appellant’s position that only in rare circumstances did the legislature intend that this statute should be utilized; i.e., to correct district boundary lines so that they would conform to certain geographic lines such as rivers, creeks, or highways. In other words, the legislature did not intend for the statute to be applicable in the case at bar.

We have held that a County Board of Education, utilizing § 80-412, is without jurisdiction to issue an order changing the boundary lines of school districts whenever a substantial part of one district is taken and annexed to another as was done here. School District No. 70 v. County Board of Education, 185 Ark. 328, 47 S.W. 2d 606 (1932). There, in reversing the trial court, we determined that the proper procedure to be followed is provided in § 80-404 as appellant asserts here. In Boone Co. Board of Ed. v. Harrison School Dist. No. 7, 241 Ark. 138, 406 S.W. 2d 365 (1966), the trial court found that the transfer of 600 to 700 acres from one district to another was substantial in nature. The opinion did not indicate what percentage of the area was involved. In affirming the trial court, we said:

Since the General Assembly has not, subsequent to the above decision [School District No. 70 v. County Board of Education, supra] provided the courts a yardstick for determining what constitutes boundary changes of a ‘substantial nature,’ we are not disposed to override the trial court’s conclusion.

Inasmuch as the legislature has not provided any “yardstick” during these many intervening years, we hold that the proper procedure to be followed in all cases involving boundary changes made for the purpose of transferring territory from one district to another, as here, is governed by § 80-404 which was not followed. Therefore, the Board’s order was void since it had no jurisdiction and the trial court should have quashed the Board’s order. The judgment is reversed and the cause remanded with directions to grant the writ of certiorari and quash the County Board’s order changing the boundary lines of the two districts.

Reversed and remanded.

Fogleman, J., dissents.