author:
Steele Hays, Justice.
      Steele Hays, Justice.

text:
    Randall WILSON v. STATE of Arkansas
    CR 80-175
    611 S.W. 2d 739
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981
    [Supplemental opinion on Denial of Rehearing March 9, 1981.]

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant, Randall Wilson, was convicted at trial below of capital murder in the death of Sharon Taylor and was sentenced to life in prison without parole.

The evidence in this case reveals that the body of Sharon Taylor was found beaten and strangled in a barn near Lowell, Arkansas, June 2, 1979- Medical testimony in the case was uncertain as to which of the two injuries was the actual cause of death, either being sufficient.

The body was found partially nude, the hands and feet of the victim having been bound with baling twine or rope.

Medical evidence established that the victim had had recent sexual intercourse, with marks found on the body consistent with forcible intercourse.

Appellant testified that he had driven his car to the Taylor residence in the early morning hours of June 2, 1979, and that the deceased voluntarily left with him in his car. Appellant testified he drove the two of them to the barn.

Appellant admitted thát he killed the deceased by striking her with a rock. Appellant denied that he had strangled the victim and denied ever having sexual intercourse with her.

Appellant alleged that he killed Sharon Taylor because she was attempting to blackmail him and threatening to testify against him in a child custody hearing between Wilson and his former wife.

Appellant denied he had kidnapped the' deceased from her home. He alleged that Sharon Taylor had voluntarily left her home with him, leaving her two small children alone in the house asleep.

At the conclusion of all the testimony, the trial court instructed the jury on capital murder, murder in the first degree, murder in the second degree, and manslaughter. The jury retired for deliberations and returned a verdict of guilty of capital murder.

The court then received evidence of aggravating and mitigating circumstances, and the jury again retired to consider: the punishment, returning a sentence of life in prison without parole.

Appellant brings this appeal asserting that the statutes involved, Ark. Stat. Ann. §§ 41-1501 and 41-1502, are unconstitutional in their application to the present case. In support of such contention, appellant makes several arguments which we discuss separately.

First, appellant argues that the overlapping nature of § 4l-1501(l)(a) and § 41-1502(l)(a) renders the statutes unconstitutional since they would allow for de facto sentencing in an arbitrary and capricious manner. In support of this argument, appellant cites this court to Roberts v. Louisiana, 428 U.S. 325 (1976). We disagree with the argument.

Arkansas’ capital murder statute, Ark. Stat. Ann. § 41-1501, provides in pertinent part:

(1) A person commits capital murder if: (a) acting alone or with one or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, Robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ....

Arkansas’ first degree murder statute, Ark. Stat. Ann. § 41-1502, provides in pertinent part:

(1) A person, commits murder in the first degree if: (a) acting alone or with one or more persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

In Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980), we noted that the mere overlapping of the statutory provisions did not render the statute unconstitutional:

We are unwilling to say that the reference in Section 4l-1502(l)(a) to ‘a felony’ was meant to exclude the seven felonies specified in the preceding section . . . . In any event, we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses. Cromwell, at 107-108

In Roberts v. Louisiana, 428 U.S. 325 (1976), the Supreme Court struck down Louisiana’s mandatory death penalty for first degree murder. Under the Louisiana statutes, the jury was compelled to return a verdict of either guilty, guilty of second degree murder, guilty of manslaughter, or not guilty. The Court typified' this statutory scheme as one which “invites the jurors to disregard their baths arid choose a verdict for a lesser offense whenever they feel the death penalty inappropriate.”

In striking down the Louisiana statute, the Court said:

There is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge’s instructions. Roberts, at 335.

Unlike the statutory scheme in Louisiana, the Arkansas statutes do not make avoidance of the death penalty dependent on the jury’s disregard of the law. In the event the jury finds the defendant guilty of capital murder, as in the present case, the jury is vested with the power to sentence the defendant to either the death penalty or life imprisonment without parole, as here. Additionally, since the capital murder statute and the first degree murder statute overlap in circumstances such as the present case, the jury may refuse consideration of the death penalty by returning a guilty verdict as to the charge of murder in the first degree but not as to the capital murder.

Second, the appellant argues that the application of the capital murder statute precludes consideration of the lesser offense of murder in the first degree. The argument is without merit.

As recently as Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980), we held in the circumstances of that case that it was reversible error to fail to instruct the jury as to murder in the first degree where defendant is charged with capital murder.

In the present case, the trial judge instructed the jury as to capital felony murder, murder in the first degree, murder in the second degree, and manslaughter. We find no error.

Third, the appellant argues the application of the capital murder statute to the present facts relieves the state of the burden of proving each element necessary to constitute a higher degree of culpability than the first degree murder statute. Here the appellant also argues that the classification of crimes is unreasonable.

However, the constitutional protection afforded the defendant is a guarantee against the arbitrary and capricious isolation of one group of offenders for more severe punishment than that punishment given some other group for the same offense. Gregg v. Georgia, 428 U.S. 153 (1976). The classification of the crimes themselves lies within the sound discretion of the legislature.

Further, we find nothing in either statute which relieves the state of the absolute burden of proving each element of the offense beyond a reasonable doubt.

Fourth, the appellant contends that the sentence imposed, life without parole, is excessive and disproportionate to the crime and therefore constitutes cruel and unusual punishment prohibited by the Eighth Amendment.

No contention is made here that the sentencing was not in compliance with the procedures of Ark. Stat. Ann. § 14-1301 et seq. We have long held that a sentence within the statutory limits is not cruel and unusual punishment. Duncan v. State, 267 Ark. 41 (1979). And, in fact, this court has specifically held that life without parole is not cruel and unusual punishment for capital murder. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976); and McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).

Finally, the appellant argues that the distinction be-between capital murder and murder in the first degree lies in the presence of aggravating circumstances, and that in order to sustain a conviction for capital murder there must be a finding of some aggravating circumstance. This argument is wholly without merit.

Nothing in either of §§ 41-1501 or 41-1502 makes aggravating circumstances an element of the offenses. The current Criminal Code took several years to. produce and was adopted by the General Assembly only after careful consideration. We find nothing in the legislative history of the statutes or the Commentary to the sections in question to indicate that the intent was to distinguish between capital felony murder and murder in the first degree according to the presence or absence of aggravating circumstances.

Aggravating circumstances are not an element of capital murder as defined in Ark. Stat. Ann. § 41-1501, and the presence of aggravating circumstances is not necessary to support a conviction under that section.

The presence of aggravating or mitigating circumstances is relevant only to the determination of sentence under Ark. Stat. Ann. § 41-1301 et seq., as was done here.

We have also examined the record for all other legal errors, as is our practice in cases of like punishment, and finding none prejudicial, affirm the conviction and punishment.

Affirmed.

Supplemental Opinion on Rehearing delivered March 9, 1981

Steele Hays, Justice.

In our original opinion in this case, Wilson v. State, 271 Ark. 682, 611 S.W. 2d 739 (1981), we rejected appellant’s argument that the Arkansas capital murder statute, Ark. Stat. Ann. § 41-1501 was unconstitutional as applied to the appellant. On this rehearing, we again affirm the conviction but find it necessary to issue this supplemental opinion to clarify language which appellant cites as confusing. The appellant has reargued that the overlapping nature of Ark. Stat. Ann. §§ 41-1501 and 41-1502(a) renders the statutes unconstitutional under Roberts v. Louisiana, 428 U.S. 325 (1976) and Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L.Ed. 2d 232 (1980), insisting that our original opinion recognizes the validity of the argument without disposing of it.

In a line of cases beginning with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 LEd. 2d 346 (1972), the Supreme Court began a careful scrutiny of the constitutionality of the application of the death penalty. In Furman, the Court struck down a Georgia statute which allowed the jury complete discretion in imposing capital punishment. Such discretion led to “wanton ánd freakish” imposition of the death penalty in violation of the Eighth Amendment. See, Stewart, J. concurring, at 310.

Following Furman, the Court made it clear that the constitutional protection afforded an accused is a guarantee against the arbitrary and capricious isolation of one group of offenders for punishment more severe than that given another group of offenders. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). In Gregg, as in Furman, the Court was passing on the constitutionality of how the sentence was determined. In Beck, the protections afforded under Furman and Gregg were extended from the sentencing determination to the guilt determination.

In examining the Arkansas statutes, Ark. Stat. Ann. §§ 41-1501 and 41-1502(a), we have interpreted the statutes as intentionally overlapping, while holding that such overlapping does not render them unconstitutional. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980). We adhere to that view and point out that neither Beck nor Roberts, nor any authority given us by appellant, holds that overlapping alone creates a constitutional deficiency.

Appellant’s petition for rehearing relies heavily on Beck v. Alabama and Roberts v. Louisiana, supra. These cases involve the scrutiny of state statutes enacted in apparent response to Furman. Both defendants were given the death penalty. In Beck, Alabama law made felony murder a lesser included offense to the capital crime of robbery-intentional killing. In Alabama, the trial judge is prohibited from giving the jury the option of convicting the defendant of a lesser included offense and, thus, a jury must either convict the accused of a capital crime, in which case it must impose the death penalty, or acquit him. If the verdict is guilty, the trial judge then conducts a hearing to consider aggravating/mitigating circumstances and he may then impose the death sentence or life imprisonment. In Beck, the jury imposed a sentence of death and the trial judge refused to overturn the sentence. The errancy of Alabama’s statutory scheme, according to Beck, was in the apparent mandatory nature of the death penalty and the unavailabilty of the lesser included offense as a “third option” to the jury. The court held that the absence of the opportunity to convict the defendant of a lesser included offense deprived the defendant of the full benefit of the reasonable doubt standard.

In Roberts, the statutory procedure of Louisiana in capital cases was examined. Under Louisiana law, a verdict of guilty in a first degree murder charge is dependent upon a finding by the jury that the defendant had a specific intent to kill and was engaged in one of several felonies, in this case, armed robbery. The death penalty is mandatory on such a verdict. The jury is always instructed as to lesser offenses, irrespective of whether the evidence supports a lesser verdict. The court compared the Louisiana scheme to that of North Carolina, invalidated on the same day (Woodson v. North Carolina, 428 U.S. 289), declaring it unconstitutional in that it “plainly invited the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel that the death penalty is inappropriate.” The errancy in this statutory scheme, as the Court found, is that merely by determining that both conditions existed, i.e., a specific intent to kill and armed robbery, the jury was compelled to return a verdict of death. In both instances, any qualification of the sentence or recommendation of mercy by the jury is without effect.

We hardly need point out, but do so again, that our statutes are vastly different from those of Louisiana and Alabama and are not tainted by the same flaws. The jury is free to convict on capital felony murder or of lesser included offenses. Furthermore, the jury is not compelled to impose death even if it finds the defendant guilty of the greater offense, capital felony murder, as it is still free to sentence the defendant to life without parole after considering the mitigating/aggravating circumstances. .It is true that there is some overlapping in our two statutes but as pointed out in Cromwell, it is impossible to entirely avoid the use of general language in the definition of certain offenses and, furthermore, the actual wording of the statute may have been deliberate to lighten the possible punishment that might be imposed. We conclude that the overlapping aspect of our statutes does not bring them within the shadow of either Beck or Roberts.

Rehearing denied.


source: Caselaw Access Project

author: James R. Cooper, Judge.

license: Public Domain

text:
    HOT SPRING COUNTY BICENTENNIAL PARK and FIDELITY and GUARANTY COMPANY v. G. A. WALKER
    CA 80-407
    610 S.W. 2d 268
    Court of Appeals of Arkansas
    Opinion delivered January 14, 1981

      Laser, Sharp & Huckabay, P.A., for appellant.

      Youngdahl & Larrison, for appellee.
   James R. Cooper, Judge.

This appeal is from a finding by the Arkansas Workers’ Compensation Commission that appellants were liable for the payment of attorney’s fees on the controverted portion of the lump sum award based on the present value computation of claimant’s compensation benefits, unlimited by the application of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976).

The facts are not at issue in this case so we will summarize briefly. Appellee was employed by appellant, Hot Spring County Bicentennial Park, and sustained an injury to his back on June 4, 1976. After retaining counsel, appellee filed a claim for Workers’ Compensation Benefits against appellant, who admitted that claimant had sustained a total disability as a result of this injury and a pre-existing injury of 50% to his body as a whole. Benefits in excess of 50% were controverted by appellant, and appellee contended that he was permanently and totally disabled. On January 15, 1980, the full Commission affirmed an award of the Administrative Law Judge, finding that claimant was totally and permanently disabled as a result of the above-described injury. Appellants were ordered to pay maximum attorneys’ fees allowable on the controverted portion of the award. Following a petition by counsel for appellee to pay attorneys’ fees in a lump sum, appellants denied liability for any attorneys’ fees based upon amounts exceeding the first $50,000.00 payable to the claimant in weekly benefits. Appellee contends that appellant is liable for attorneys’ fees based on the entire amount of the award, including the portion which exceeds $50,000.00. The cause was then referred to the Administrative Law Judge who found appellants liable for payment of fees based on the entire award with the fee to be reduced to present value, and, following an appeal the full Commission by a vote of two to one affirmed the findings of the Administrative Law Judge.

The relevant portion of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) provides:

“The first fifty thousand dollars ($50,000.00) of weekly benefits for death or permanent disability shall be paid by the employer or his insurance carrier in the manner provided in this Act. An employee or dependent of an employee who receives a total of fifty thousand dollars ($50,000.00) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of fifty thousand dollars ($50,000.00) shall be payable from the Death and Permanent Total Disability Bank Fund ...”

The relevant portion of Ark. Stat. Ann. § 81-1332 (Repl. 1976) provides:

“Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Commission, and such fees shall not exceed thirty percent (30%) on the first one thousand dollars ($1,000.00) of compensation, or part thereof, twenty percent (20%) of all sums in excess of one thousand dollars ($1,000.00) but less than three thousand dollars ($3,000.00) of compensation, and ten percent (10%) on all sums in excess of three thousand dollars ($3,000.00) of compensation. Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer. or carrier in addition to compensation awarded, and such fees shall be allowed only on the amount of compensation controverted and awarded ...”

Appellant argues that the statute clearly limits the payment of attorneys’ fees by the carrier to the amount of compensation “awarded” for which the carrier is liable. We disagree. The language of the statute provides that “such fees shall be allowed on only the amount of compensation controverted and awarded.” There is no language in the above-referenced statute limiting the award of the attorneys’ fees to amounts which the employer and its carrier both controvert and owe. The test is that fees are calculated on the amount controverted and awarded.

Appellants further argue that claimant in this case has only been “awarded” a maximum of fifty thousand dollars ($50,000.00) against appellants, and therefore that is the maximum upon which attorneys’ fees can be calculated. This argument misses the point.

One of the purposes of Ark. Stat. Ann. § 81-1332 is to place the burden of litigation expense on the party which made it necessary by controverting the claim. Placing the responsibility for attorneys’ fees of the employee on the employer and his carrier serves to encourage prompt and honest settlements, and to compensate employees for delay and litigation expense. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976).

Appellant has not argued that the award of the maximum allowable fees in this case was an abuse of discretion and, since the Workers’ Compensation Commission has much discretion in fixing and approving the amount of attorneys’ fees, we do not consider the issue of whether or not the maximum award in this case was excessive. Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871 (1968).

We hold that Ark. Stat. Ann. § 81-1332, which provides that attorneys’ fees shall be allowed only on the amount of compensation controverted and awarded, is not limited by the application of Ark. Stat. Ann. § 81-1310(c)(2) limiting the liability of the carrier and employer to the first fifty thousand dollars in weekly benefits. Accordingly, we affirm the decision of the Arkansas Workers’ Compensation Commission, awarding attorneys’ fees to appellee on the controverted portion of the award in lump sum based upon the present value computation of claimant’s compensation benefits, unlimited by Ark. Stat. Ann. § 81-1310(c)(2), but with appropriate credit for fees previously paid.

Affirmed.

Glaze, J., not participating.


author: Lawson Cloninger, Judge.

text:
    Robert Ross WHITE v. STATE of Arkansas
    CA CR 80-59
    610 S.W. 2d 266
    Court of Appeals of Arkansas
    Opinion delivered January 14, 1981

      E. Alvin Schay, State Appellate Defender, by: Matthew Wood Fleming, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Lawson Cloninger, Judge.

Appellant Robert Ross White and Brenda Faye Tayborn were convicted of robbery by the trial court sitting as a jury. Only White prosecutes an appeal. His only contention on appeal is that the trial court erred in not granting his motion for a directed verdict in that the evidence was insufficient to support the charge of robbery. We find that the trial court correctly denied the motion for a directed verdict, and that there was substantial evidence to support the conviction.

In October of 1979 an employee of Oseo Drug observed appellant remove merchandise described as a Revlon permanent kit from a shelf and place it in Tayborn’s purse. Tayborn opened her purse, appellant deposited the merchandise in it, and Tayborn then closed her purse.

Appellant and Tayborn were approached by an Oseo employee who asked them to go upstairs with him. They wanted to know why, and were told they had been observed placing merchandise in Tayborn’s purse. Appellant then opened Tayborn’s purse, threw the merchandise on a shelf, knocking down some things, and the item fell to the floor, breaking. Appellant said, “Let’s leave the store,” and the two started moving up and down the aisles in different directions, turning and going in another direction when an aisle was blocked by employees. An employee locked one door, and when he went to lock the other he was rammed from the rear by appellant. A struggle ensued, other employees intervened, and appellant was subdued. There was obscene and abusive language used, and threats were made by appellant. After appellant was subdued, Tayborn attempted to strike one employee with a clothes rack, and kicked another employee.

Appellant and Tayborn were charged with the crime of robbery under Ark. Stat. Ann. § 41-2103, which provides:

ROBBERY. (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. (2) Robbery is a class B felony.

The State charged that the defendants employed physical force against two employees of Oseo Drug with the purpose of avoiding apprehension immediately after the commission of a theft.

Appellant does not argue a lack of evidence of the use of physical force, and in any event, there is substantial evidence to support such a finding. He contends that there is no testimony to establish that at the time appellant exercised physical force against another person, he had, in fact, committed a theft, and that at no time did the witnesses testify that appellant used physical force prior to the returning of the merchandise to the shelf. The sole issue, then, remaining to be resolved is, “Was there a theft?”

The relevant portion of Ark. Stat. Ann. § 41-2203 provides that a person commits theft of property if he exercises unauthorized control over the property of another with the purpose of depriving the true owner of it; that the theft is a class B felony if the value of the property is $2500 or more; that the theft is a class C felony if the value of the property is less than $2500 but more than $100; that, otherwise, theft is a class A misdemeanor.

The standard of review on appeal is that this court will affirm if there is any substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978); Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302 (1970); Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974). In testing the sufficiency of evidence, this court will review the evidence in the light most favorable to the State. Lunon, supra; Abbott, supra.

The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). As noted in Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979), intent is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. In the Smith case, the Arkansas Supreme Court reversed a conviction for theft on the grounds that the trial court was only left to speculation and conjecture in reaching the conclusion that Smith had the intent to deprive the owner of his property. In Smith, appellant had been observed concealing cigarettes in her coat, but passed them to her sister in the check-out line before she was confronted. In reversing, the court stated that if appellant had been accused of trying to steal the cigarettes, even inferentially, before she passed them to her sister, it would have been a different situation.

In Jarrett v. State, 265 Ark. 662, 580 S.W. 2d 460 (1979), a security guard observed Jarrett take a grocery cart of meat into a storeroom marked “Employees Only” and place the meat in sacks that had been stuck in the back of his pants. Jarrett ran when he saw the security guard, and a fight ensued. The Arkansas Supreme Court affirmed Jarrett’s robbery conviction, observing:

“The trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it had been paid for.”

Applicable to this action is the shoplifting presumption found in Ark. Stat. Ann. § 41-2202 (2):

(2) Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to the presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

In the instant case the presumption arose when appellant concealed the merchandise in Tayborn’s purse, and his actions, after confrontation, in throwing the item onto a shelf as he fled, do nothing to rebut the presumption. Nothing in his conduct indicated that he was renouncing an intent to commit theft.

In addition to the shoplifting presumption there is evidernce to support the finding of the trial court that there was a theft. Appellant’s flight following the commission of the offense is a circumstance to be considered with the other evidence in determining probable guilt, as is the conduct of the accused during the period of his flight, including any criminal conduct constituting an inseparable part of the flight. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973).

It is the duty of this court to enforce the statute as it is written as was done in Wilson v. State, 262 Ark. 339, 556 S.W. 2d 657 (1977) and Jarrett. There is substantial evidence to support the finding that appellant committed a theft, and that with the purpose of resisting apprehension immediately thereafter, he employed physical force upon an employee, or employees, of Oseo Drug.

Affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    Hazel SPENCE v. Don SPENCE et al
    80-242
    610 S.W. 2d 264
    Supreme Court of Arkansas
    Opinion delivered January 19, 1981

      Mattingly & Alexander, P.A., by: Lesly W. Mattingly, for appellant.

      Charles A. Walls, Jr., for appellees.
   Richard B. Adkisson, Chief Justice.

This case involves the construction of a will in which certain land was devised “to my son-in-law Hayward Spence and my daughter Donnie Spence and her bodily heirs.” The appellees are the sole bodily heirs of Donnie Spence by her husband, Hayward Spence.

Following the probate of this will and Donnie Spence’s death, Hayward married Hazel Spence and quitclaimed to her his interest in the land. Appellees filed a quiet title action in Lonoke County Chancery Court against Hazel Spence, appellant to cancel this quitclaim deed.

The primary question presented is what estates were created by the testator’s language. First, an estate by the entirety was created by the devise to the parties who were, in fact, husband and wife. Curtis v. Patrick, 237 Ark. 124, 371 S.W. 2d 622 (1963). This arises from the common law unity of husband and wife, and it applies to an estate in fee as well as for life. Roach v. Richardson, 84 Ark. 37, 104 S.W. 538 (1907); Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903 (1954). Second, a fee tail estate is created by a devise to Donnie and Hayward Spence which singles out “her bodily heirs.” Horsley v. Hilburn, 44 Ark.458 (1884); Weatherly v. Purcell, 217 Ark. 908, 234 S.W. 2d 32 (1950). Third, under such circumstances, Ark. Stat. Ann. § 50-405 (Repl. 1971) establishes a life estate in the person seized of the fee tail with a remainder in fee to whom the estate tail would first pass at common law. Therefore, Hayward and Donnie Spence took an estate by the entirety for life with the remainder vesting in the heirs of Donnie Spence in fee simple absolute.

We need not concern ourselves with appellant’s contention that the trial court erred by admitting into evidence oral declarations of the testator made before and after the execution of the will. The chancellor clearly ignored such testimony in finding the testator’s intent, as reflected in the judgment which states that such intent was found “from the will itself.” This complies with our well-established rule that the testator’s intent should be derived from the “four corners of the will,” when possible. Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977).

Affirmed.


author: George Rose Smith, Justice.

text:
    James Leo BATES v. STATE of Arkansas
    CR 80-205
    610 S.W. 2d 257
    Supreme Court of Arkansas
    Opinion delivered January 19, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

James Leo Bates, charged as an habitual criminal with the offense of rape and burglary, was found guilty by a jury and sentenced to life imprisonment and a $15,000 fine for the rape and 30 years and a $15,000 fine for the burglary. We find no merit in the only point for reversal that is argued, nor any other error in the record.

The point for reversal relates to the admission into evidence of a statement made by the prosecutrix to the police. The statement was first mentioned by defense counsel, who cross-examined the prosecutrix about that statement and about another statement made to defense counsel. On redirect examination the prosecuting attorney sought to introduce both statements, on the ground that the admission into evidence of part of each statement made the entire statements admissible. Defense counsel at first objected to the use of either statement, but he withdrew his objection to the statement to the police, saying: “If they want to read their statement into the record, that’s fine. I anticipated they would anyhow.” The objection having been withdrawn, the case stands as if no objection was made. Hence no reversible error is shown, for an objection is necessary even when the sentence is life imprisonment. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 984 (1977).

The State concedes that the appellant is entitled to credit for 173 days of pretrial jail time; so the judgment is modified and the cause remanded for the entry of that credit. Carey v. State, 268 Ark. 392, 596 S.W. 2d 688 (1980).

Affirmed as modified and remanded.


author: Darrell Hickman, Justice.

text:
    Curtis Allen GIPSON v. STATE of Arkansas
    CR 80-160
    610 S.W. 2d 261
    Supreme Court of Arkansas
    Opinion delivered January 19, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Curtis Allen Gipson was convicted of theft of a 1979 four wheel drive Ford pickup truck and sentenced to six years imprisonment. He was sentenced as an habitual criminal with two prior felony convictions.

On appeal he argues there was insufficient evidence to corroborate the testimony of an accomplice. We find sufficient evidence and affirm his conviction. Gipson and an acquaintance, James Allen Allred, both of whom live at Ola, Arkansas, went to Little. Rock on the 14th of February, 1979. Gipson went on business and Allred went along for the ride. They picked up a hitchhiker on their return. The hitchhiker, identified as Steven Hearn, was not a witness at the trial but was admittedly a confidential informant for the authorities in Hot Springs, Arkansas.

Allred pled guilty to theft and testified against Gipson. Since Allred was an accomplice and his testimony must be independently corroborated by other evidence which not only establishes that the crime was committed, but also tends to connect Gipson to that crime. Ark. Stat. Ann. § 43-2116 (Repl. 1977). Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976).

Allred’s story was that the hitchhiker and Gipson agreed that Hearn would steal a truck and deliver it to Gipson for $100.00. They drove through Arkadelphia and Malvern looking for trucks at dealers and ended up in Hot Springs at Resort Ford Company. Allred said Gipson entered the truck with a screwdriver and gave a tool to Hearn which could be used to pull the ignition so the truck could be started: Gipson and Allred left, agreeing to meet Hearn later that evening.

Early the next morning they met Hearn, who was driving the stolen truck, in a remote area. There the police arrested them. Lt. Charles Evans of the Hot Springs Police Department said that he had used Hearn as a confidential informant in drug cases and had received a call from him about two or three o’clock in the afternoon of the 14th of February. Hearn told Evans about the proposed theft of a truck. Evans instructed Hearn to proceed as planned. Later, at one o’clock in the morning Evans again met with Hearn at the police station. Hearn had the stolen truck and showed the officers a dent-pulling tool he had used to pull the ignition system so that the truck could be driven. Evans marked the tool and instructed Hearn to return it to the man who had given it to him. Hearn related where he was supposed to meet Gipson later and the police notified other law enforcement officers of the place of the meeting. Surveillance by several officers was arranged.

In the early morning hours of the 15 th the stolen pickup and a Pontiac car were seen in a remote area near Ola with the truck following the car. After driving around, the two vehicles stopped. Hearn was in the truck. The officers testified that the parties were talking when it was decided to arrest them. The arrest took place at about 5:00 a.m. Evans testified, and his testimony was corroborated by other officers, that the tool brought to him by Hearn and marked at the police station was found in Gipson’s vehicle.

A witness for Resort Ford testified that he was informed by the police of the proposed theft beforehand. He identified the truck as his. It was a new 1979 orange and white Ford pickup truck.

Gipson elected to testify against the advice of his attorney. He stated that he did not discuss stealing a truck with Hearn, but it was Allred and the hitchhiker who talked about “a big, big-time business deal, and I wasn’t paying all that much attention to them at all, no way.” He said Allred told him they were supposed to meet the hitchhiker and “look at” a truck. He said when he first saw the truck and looked it over he knew it was stolen and he “didn’t even touch it.” He said he was going home when the officers stopped him. Apparently he never explained to the jury’s satisfaction why he was meeting Hearn in a remote area at 5:00 a.m. He denied ever being at the Ford dealership, entering the vehicle, or seeing the “pulling” tool.

It is not necessary that the corroborating evidence prove the guilt of the accused beyond a reasonable doubt. It must simply establish that a crime was committed and tend to connect the accused with that crime. Here, a truck was stolen and the owner testified to that fact. A tool, delivered in advance to the police and marked by them, was found in Gipson’s car. Gipson was on top of Ola Mountain, a remote area of Yell County, at 5:00 a.m. He was talking to a man in the stolen truck and Gipson admitted that he had already suspected that the truck was stolen. Obviously the evidence tends to connect Gipson to the theft and this, along with the testimony of the accomplice, was sufficient for the jury to find him guilty.

Gipson’s own testimony, no doubt, was not helpful. He admitted that he agreed to meet a stranger at 5:00 a.m. in a secluded place to discuss buying a pickup truck. Those are not the normal circumstances surrounding the sale of any pickup truck — much less a brand new orange and white four wheel drive truck. The tool and all the circumstances of the clandestine meeting tend to connect Gipson to the theft.

Affirmed.


author: John I. Purtle, Justice.

text:
    CITIZENS BANK, Beebe, Arkansas v. ARKANSAS STATE BANKING BOARD, ARKANSAS STATE BANKING COMMISSIONER, and FIRST STATE BANK, Beebe, Arkansas
    80-221
    610 S.W. 2d 257
    Supreme Court of Arkansas
    Opinion delivered January 19, 1981

      House, Holmes & Jewell, P.A., by: Philip E. Dixon and William David Duke, for appellant.

      Charles D. Matthews, P.A., by: Charles D. Matthews, for appellees.
   John I. Purtle, Justice.

The Circuit Court of White County affirmed the action of the Arkansas State Banking Board and State Banking Commissioner in granting a charter to the First State Bank of Beebe. Citizens Bank of Beebe intervened and brings this appeal.

On appeal appellant relies upon three points: (1) the court erred in affirming the Bank Board’s decision because the Board members voted before formal findings of fact and conclusions of law had been adopted; (2) the court erred in refusing to consider voluntary responses by members of the Board to interrogatories propounded to them after the charter had been approved; and, (3) the court erred in affirming the Bank Board’s decision because there was not sufficient evidence to support the decision.

The facts of this case reveal that the proposed First State Bank of Beebe made application for a bank charter on March 6, 1979. The existing bank in Beebe, Citizens Bank, filed a timely protest to the application. On June 6, 1979, a hearing was held on the application before the Commissioner and the Banking Board. A copy of the application and the supporting materials had been furnished to each Board member and the protesting bank several weeks in advance of the hearing. The hearing was scheduled to last two days; however, it was concluded at the end of the first day. The Board, by a three to two vote, approved the charter. The findings of fact and conclusions of law had not been formulated at that time. Appellant’s attorney did not accept an invitation to participate in preparing the findings of fact and conclusions of law. The findings of fact and conclusions of law were finally approved by the Board at its regular scheduled meeting on July 17, 1979. Appellant’s attorney objected to the approval of the findings of fact and conclusions of law. Appellant insisted that the findings of fact and conclusions of law should be reduced to writing before the Board acted on the application for the charter.

The petition for a judicial review was filed on August 16, 1979. Subsequent to the approval of the charter by the Board, the appellant sent written interrogatories to the Board members. The appellant argued before the court that the findings of fact and conclusions of law were not properly adopted by the Board and that such findings should have been made before the charter was granted. Also, the appellant attempted to introduce into the record the replies to the interrogatories submitted and replied to by the members of the Commission. At the hearing First State Bank and the State Bank Board objected to the interrogatories, and the circuit court refused to consider them.

We first consider appellant’s argument the court erred in affirming the decision of the Board and Commissioner because the decision to grant the charter was made without the aid of formal findings of fact and conclusions of law. Appellant insists that the findings and conclusions are a prerequisite to a decision. There are two statutes and one regulation which appear to control this argument, and they are set out below:

Ark. Stat. Ann. § 5-710 (b) (Repl. 1976): In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be served either personally or by mail with a copy of any decision or order.
Ark. Stat. Ann. § 67-207 (g) (Repl. 1980): At or after a hearing before it, the State Banking Board shall render its decision in writing, which decision shall include the Board’s findings of fact and conclusions of law. If the application is approved by the Board, the Bank Commissioner may, in the event that he also shall approve the application, grant the relief sought.
Arkansas Bank Department Manual, Regulation 28: Findings of Fact; Conclusions of Law and Decision. After the Board members reach a decision on a contested application they will execute in written form their Findings of Fact, Conclusions of Law and Decision, a signed copy of which (accompanied by the Bank Commissioner’s written concurrence or dissent) will be mailed to each person, firm, corporation or group (or to representatives of any group) which actively appeared and participated in the hearing. ... As a rule, the attorneys appearing in the matter will be asked to prepare these findings, etc. See Sec. 67-207(g), 1973 Supp.

From reading the above regulation and statutes it appears that two of them specifically authorized the findings of fact and conclusions of law to be formulated after the decision is made. The other statute is silent on this point. Therefore, we give the expressed words their ordinary meaning and in doing so necessarily imply that Ark. Stat. Ann. § 5-710(b) also permits the findings of fact and conclusions of law to be adopted after the decision is reached. Even if we were to agree with the appellant’s argument that the findings of fact and conclusions of law must be in existence prior to the approval of the charter, we think the Board did exactly that in its meeting of July 17, 1979. At the meeting of July 17, 1979, a motion was made and seconded that the order approving the application for the charter of the First State Bank of Beebe, the findings of fact and conclusions of law, which had been reduced to writing, be adopted. The motion was approved without dissent.

We agree with appellant that the Administrative Procedure Act requires a full compliance with the law, but we think that full compliance was had in this particular case. We do not find appellant’s argument regarding the procedure followed concerning the findings of fact and conclusions of law to be persuasive. It is the common practice in most trial courts to require the participating attorneys to prepare an order which will be entered at a later date although the court announces its decision at the conclusion of the trial. We find the Commission was in full compliance with the requirements of the law and regulations of the Bank Department.

We recently decided the case of Bank of Waldron v. Scott County National Bank, et al, 267 Ark. 407, 590 S.W. 2d 654 (1979), which is almost squarely on point with the present case. In Bank of Waldron the evidence presented had been furnished to the interested parties several weeks in advance. The case had been set for a two day hearing but ended at the close of the first day. A vote was taken at the end of the hearing and by a vote of three to two a charter was granted to the Bank of Waldron. The factual situation is so similar to the present one that we think that case is controlling. In affirming the decision in Bank of Waldron we stated:

. . . Here the evidence presented at the hearing including various economic reports and the oral testimony, does not appear to be of a highly technical or complex nature in view of the experience and expertise of the members of the Board. Although the decision to approve the application was made immediately following the presentation of the evidence, we cannot say that it is demonstrated the Board failed to adequately consider the evidence. Accordingly, we hold the Board’s decision was not arbitrary and capricious, did not deprive the appellant of due process, was not an abuse of discretion, nor was it in violation of Ark. Stat. Ann. § 67-303.1 (Supp. 1979), which only requires “consideration” of certain factors by the Board.

We further quoted 2 Am. Jur. 2d, Administrative Law, § 439, in Bank of Waldron v. Scott County National Bank, et al, supra:

The extent to which an independent study of the evidence in the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the agency.

We also held in Arkansas Savings & Loan Association Board v. Central Arkansas Savings & Loan Association, 256 Ark. 846, 510 S.W. 2d 872 (1974), that the requirement for the underlying facts to be concisely and explicitly stated was primarily for the benefit of the reviewing court. Both the Savings and Loan Board and the Banking Board proceedings are controlled by the Administrative Procedure Act which is Ark. Stat. Ann. § 5-701, et seq. (Repl. 1976). Considering the fact that the Banking Board adopted findings of fact and conclusions of law at the same time they finally approved the application for the new bank, we do not find any error relating to the first argument advanced by the appellant.

The second point argued by the appellant relates to certain interrogatories propounded to the members of the Board after the decision to grant the charter had initially been announced. Appellant does not cite any Arkansas precedent in support of this contention. We know of no authority which would allow this particular procedure to be followed. In any event, the trial court found the answers to be inadmissible at the hearing of the case on its merits. Finding no authority for the submission of the interrogatories and further finding no abuse of discretion on the part of the trial court in reviewing the interrogatories, we hold that it was not error to prevent the admission of the interrogatories.

Appellant’s third and final argument for reversal is that the decision was not supported by substantial evidence. We think the application of Ark. Stat. Ann. § 67-303.1 (Repl. 1980) and Ark. Stat. Ann. § 5-713 (h) (Repl. 1976) controls this argument. The record clearly shows that the findings of fact and conclusions of law are adequately supported by the evidence. We deem it unnecessary to set out the lengthy findings of fact and conclusions of law in support of this opinion. After considering the requirements of the last two statutes quoted, we find the State Banking Board was obviously justified in the action taken in this particular case. We held in Arkansas Savings & Loan Association Board and Security Savings & Loan Association v. Central Arkansas Savings & Loan Association, 260 Ark. 58, 538 S.W. 2d 505 (1976), that upon judicial review of an administrative decision the proper rule to employ was substantial evidence. We also declared that the substantial evidence rule in this type of case required a review of the entire record and not merely a review of the. evidence supporting the administrative findings. It is a well-settled rule that this court relies upon the findings of fact and conclusions of law by administrative agencies because they are better equipped by specialization, insight, and through experience to determine and analyze the legal issues. Terrel Gordon v. Gordon L. Cummings, et al, 262 Ark. 737, 561 S.W. 2d 285 (1978).

Affirmed.

Hickman, J., not participating.


author: Per Curiam.

text:
    Albert BROWNING v. STATE of Arkansas
    CR 80-263
    610 S.W. 2d 263
    Supreme Court of Arkansas
    Opinion delivered January 19, 1981

      Stevan B. Dalrymple, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Albert Browning, by his attorney, has filed a motion for a rule on the clerk.

The motion admits that the record was not timely friled and states the reason for the delay is:

The attorney for the appellant had been assured by the reporter preparing the transcript that it would be ready prior to running of the 90 days after filing of the notice of appeal, and that if it were not the reporter would obtain a timely extension of time.
Relying upon these assertions the attorney for the appellant had no knowledge or indication that the time schedule prescribed by the rules of the Court had not been complied with.

It is not the duty of the court reporter to advise the attorney whether “. . . the time schedule prescribed by the rules of the Court had been complied with.” It is the duty of the attorney to see that the record is timely filed. Hence, no good reason is shown for the delay and we will deny the motion as it is filed.

If the affidavit attached to the motion had stated that the attorney made an error or had been careless in the computation of time, or gave any good cause, the motion could be granted. In a per curiam opinion regarding belated appeals rendered February 5, 1979, 265 Ark. 964, we discussed the problem of an untimely tendor of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.

We do not hold that we will deny a belated appeal if a reason is shown to grant the rule.


author: Melvin Mayfield, Chief Judge.

text:
    FAIRVIEW KENNELS v. Cathy BAILEY
    CA 80-392
    610 S.W. 2d 270
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981

      Wallace, Hilburn, Clayton & Calhoon, Ltd., by: John F. Forster, Jr. and David Fuqua, for appellant.

      Satterfield & Moody, for appellee.
   Melvin Mayfield, Chief Judge.

This is an appeal from an award of the Workers’ Compensation Commission holding that appellant had the requisite number of employees to be subject to the Workers’ Compensation Act and that the appellee received an injury arising out of her employment.

It is appellant’s first contention that she did not have three or more regular employees and thus was not subject to the act.

Appellant is the sole owner and operator of Fairview Kennels. She admits that appellee Cathy Bailey was a regular employee. She also admits that Lane Miller was a regular employee. The administrative law judge found, and the full commission agreed, that the appellant, her son, and Mrs. Debbie Fout were also regular employees. If appellant had three regular employees, she was subject to the act.

As to Mrs. Fout, it is appellant’s contention that she was an independent contractor and not an employee. The commission found that she was an employee. This was a question of fact which we must affirm if there is any substantial evidence to support the finding. Purdy’s Flower Shop v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).

There was evidence that appellant would make appointments for dogs to be groomed and Mrs. Fout would come in and do the work. At the end of the week the appellant would give Mrs. Fout fifty percent of what had been collected for the grooming. Their arrangement was not written and the appellant testified she had the authority to fire and hire anyone who worked there. She said Mrs. Fout was a professional groomer and did not need to be told how to do it but at times appellant would tell her “I don’t think you ought to shave this dog. You ought to brush it.”

In Purdy’s Flower Shop v. Livingston, supra, the Supreme Court pointed out that whether one is an employee or an independent contractor is a question of fact and at page 580 said:

The primary test is whether the will of the worker or that of the employer dominates the means and method of the work, except as to result. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W. 2d 620. We there pointed our that there are numerous indicia of the relationship utilized as guides to the primary question of control, none of which is conclusive or controlling. Among those we have recognized are: the time for which the workman is employed; the right to terminate the employment without liability; the method of payment, whether by time, job, piece or other unit of measurement; furnishing, or the obligation to furnish, necessary tools and equipment and materials; and the exercise of some slight control of the manner of doing the work, where the nature of the work is such that little supervision is necessary. Parker Stave Co. v. Hines, supra; Irvan v. Bounds, 205 Ark. 752, 170 S.W. 2d 674.

We hold that there was substantial evidence from which the commission could have found either way so we affirm the commission’s finding that Mrs. Fout was a regular employee. Since this makes three such employees, it is not necessary to discuss the commission’s finding with regard to the appellant and her son.

The appellant’s second contention is that the evidence does not support the finding that the appellee received an injury arising out of her employment. Appellant contends that there was an “unexplained fall” and that there is no evidence to show it was causally connected to appellee’s work.

Both parties agree that there is no appellate decision in Arkansas dealing with an “unexplained fall” situation. However, we note that § 10.31 of Larson, Workmen’s Compensation Law (1978) says, “It is significant tó note that most courts confronted with the unexplained fall problem had seen fit to award compensation.”

The appellee “explained” her fall this way: “I was cleaning the kennels in back and disinfecting them, and I was going to the front to refill the disinfectant bottle, and I fell and couldn’t get up.” We hold this sufficient explanation for the commission to find that the appellee fell while doing the work her job required and that she thereby received an injury arising out of her employment. This is a question of fact and it has been determined by the commission and unless we find that “fair-minded men could not reach the conclusion arrived at by the commission” we must affirm. Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W. 2d 242 (1922).

We hold that the award of the commission is supported by substantial evidence.

Affirmed.


author: George K. Cracraft, Judge. James R. Cooper, Judge,

text:
    William Thompson TERRY v. STATE of Arkansas
    CA CR 80-46
    610 S.W. 2d 272
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981

      E. Alvin Schay, State Appellate Public Defender, by:Jack R. Kearney, Deputy Appellate Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dou’den, Asst. Atty. Gen., for appellee.
   George K. Cracraft, Judge.

The appellant was charged in the Washington County Circuit Court with 1) two counts of Theft of Property in violation of Ark. Stat. Ann. § 41-2203 (2) (b) (Repl. 1977); 2) unlawful possession of a firearm in violation of Ark. Stat. Ann. § 4l-3103(l)(a) (Repl. 1977); and 3) being a habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). A jury found him guilty on all counts. The appellant was sentenced to three years on each of the two Theft of Property charges and one year on the Felonious Possession of a Firearm charge. The Court ordered that the Theft of Property sentences be served consecutively and the Felonious Possession of a Firearm be concurrent to those. It is from this verdict, sentence and judgment that the appellant brings this appeal, asserting 1) that the conviction on the two counts of Theft of Property and the count of Felonious Possession of a Firearm were based upon defective search warrants and evidence obtained by warrantless search; 2) that the enhancement of the sentences was based upon an Information containing insufficient allegations of the charges; and 3) that the state failed to prove the value of the hubcaps to be in excess of $100.

The appellant was arrested by campus security officers at 3:00 a.m. on September 29th, 1979, after having been observed by them in the act of stealing hubcaps in the University of Arkansas parking lot in Fayetteville. The officers saw him take several sets of hubcaps and place them in the trunk of his car. Later that day a warrant was issued authorizing a search of his automobile. The appellant was taken into custody at the scene in the early hours of the morning, but the search warrant was not obtained or executed until later that day.

While the appellant was in custody, but before the application for the search warrant, appellant stated to the officers that there was a pistol in the trunk of his automobile. All of the officers admitted that they heard the statement and that they knew he was a convicted felon. Both the applicaion and the warrant listed only hubcaps as the articles sought. No mention of the gun was made.

Prior to the trial the defendant requested and was granted a hearing on an oral motion to suppress certain statements made by him while in custody and evidence of the weapon found in his car. No other issues were raised or ruled upon.

The defendant now urges that the warrant was defective in other respects and that all the fruits of the search should have been suppressed. As the questions of the service of the warrant and inventory upon the defendant were not raised in the court below, they may not be raised on appeal for the first time. Halfacre and Duty v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Jeffers v. State, 268 Ark. 329, 595 S.W. 2d 678 (1980). The officers were not questioned about the service at any stage of the proceedings and the appellant testified that at the time of his arrest and for a period of time thereafter his memory was so faulty due to a prescription drug he was taking, that he could recall little of what had taken place.

Though we hold that the warrant was valid and the initial intrusion to search for hubcaps was lawful, we conclude that the seizure of the weapon during that search was warrantless, and evidence based upon it should have been suppressed.

That weapon itself was not specifically described in the warrant or the affidavit and cannot be validated under the “plain view rule.” The “plain view rule” applies only if 1) the initial intrusion resulting in the plain view discovery was lawful, 2) the discovery was inadvertent, and 3) the incriminating nature of the object was immediately apparent. Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12. Here the officers all knew for hours before the warrant was issued and the search pursuant to it, that the appellant had stated that the weapon was in the trunk of the car. In these circumstances the discovery of this weapon was not “inadvertent,” but to the contrary “advertent.”

Appellant further urges that the enhancement of his sentences pursuant to the Arkansas Habitual Offenders Statutes should be reversed as it was based on insufficient allegations of the offenses in the Information. The felony information filed by the prosecuting attorney is as follows:

“furthermore, the defendant, William Thompson Terry has been previously convicted of more than one felony offense and should be subject to the sentencing provisions of Ark. Stat. Ann. § 41-1001.”

Ark. Stat. Ann. §41-1001(1) (Repl. 1977) provides for enhancement of sentence for “1) a defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, ***.” The Information in question correctly states the elements of the offense for which enhanced sentence may be imposed. There was evidence introduced at the trial that the appellant had been convicted and sentenced on three prior felony offenses. It is clear then that this appellant was correctly charged with having been convicted of “more than one” felony offense as provided in the statute.

The appellant further contends that his conviction for Theft of Property must be reversed because the state failed to prove the value of the eight hubcaps stolen exceeded $100. This contention is meritless.

Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1977) states:

“Theft of Property is a class C felony if the value of the property is less than $2500 more than $100.”

Here the proof shows that the appellant appropriated two sets of hubcaps. The first set was taken from a 1978 Thunderbird belonging to Sherry Goodner who had bought the car less than 13 months before the hubcaps were stolen.

An expert testified that the replacement cost of each hubcap was $67.40, and tat the value of the four hubcaps was $269-60.

The second set of hubcaps were taken from an automobile of Nancy Cassidy, who owned a 1978 Monte Carlo and had purchased it less than a year before the theft.

An expert testified that the cost of each of the four hubcaps was $57.25, a total of $229 for a set of four. No objection was made by the appellant to this testimony.

Ark. Stat. Ann. § 41-2203 (3) (Repl. 1977) defines the amount of a theft as the “amount involved in a theft shall be deemed to be at the highest value, by any reasonable standard, of the property or services which the actor obtained or attempted to obtain.”

We conclude that this evidence was sufficient to establish that the value of each set of the hubcaps stolen by appellant was in excess of $100, the requisite amount for a conviction of Theft of Property. Evidence of purchase price of property may be evidence of market value when admitted without objection, and we do not feel that the date of purchase of the articles in question is too remote. Cannon v. State, 265 Ark. 271, 578 S.W. 2d 20 (1979); Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978).

We affirm the sentences imposed on the two Theft of Property convictions and reverse the conviction on the charge of Felonious Possession of a Firearm.

Cooper, J., dissents.

James R. Cooper, Judge,

dissenting. I respectfully dissent from that portion of the majority opinion which concludes that evidence based upon seizure of the weapon involved should have been suppressed.

The uncontradicted facts show that the weapon was not described either in the search warrant or the affidavit. The defendant refused to sign a consent to search form and stated as his reason for this refusal the fact that there was a gun in the trunk. The defendant had been observed removing hubcaps from vehicles and placing them in the trunk of his car. Pie was arrested on a charge of theft of property and a search warrant was issued some hours later which described the hubcaps which were the object of the search. Rule 13.2 of Arkansas Rules of Criminal Procedure, provides in pertinent part:

. . (b) the warrant shall state, or describe with particularity; (iv) the persons or things constituting the object of the search and authorized to be seized; and . . .”

The question of whether a search warrant was required at all under Rule 12.1 (d) is not before us, but it certainly could be argued that since the defendant had been arrested for theft of property the officers could have searched the property of the defendant without a warrant to obtain evidence of the commission of the offense for which he was arrested, specifically the theft of the hubcaps. Rule 13.3 (c) of the Arkansas Rules of Criminal Procedure provides in part that where in the course of a search under a warrant things are discovered which are not specified in the warrant, but which the officer believes to be subject to seizure, they may also be taken into possession.

The majority cites Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12 for the proposition that Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 564 (1971), holds that the plain view rule applies only where the initial intrusion resulting in the plain view discovery was lawful, where the discovery was inadvertent, and where the incriminating nature of the object was immediately apparent. The only factor not established here was whether or not the discovery of the weapon was “inadvertent.” It is argued, and the majority holds, that defendant’s refusal to consent to a search because of the presence of a gun in the trunk was enough to trigger a requirement that the officers list the weapon in the affidavit for a search warrant. Under the rule stated in Gatlin and Coolidge, supra, it is obvious that had- the statement of the defendant not been made, there would be no problem in seizure of the weapon found in the trunk of the vehicle as that clearly would have been inadvertent. I fail to see the logic which results from the majority holding. Where the officers had no knowledge whatsoever about the existence of the gun the gun would not be suppressed, but where defendant mentioned its existence, it must be excluded, even though the gun clearly was not the object of the search.

In my view, the purpose of the plain view doctrine as espoused in Coolidge and Gatlin is to establish requirements for the admissibility of evidence where its incriminating nature is apparent and where discovery is inadvertent. The requirement in the cited case which related to the lawfulness of the initial intrusion is not in my opinion applicable here, since I believe those cases to stand for the proposition that the intrusion referred to is not an intrusion under a search warrant, but another lawful intrusion into the private property of a defendant.

For the reasons stated I must respectfully dissent and would affirm the judgment of the trial court as to the charge of unlawful possession of a firearm.


text:
    Harvey D. MOSLEY v. HEIM BROTHERS PACKING COMPANY and AETNA LIFE & CASUALTY COMPANY
    CA 80-356
    610 S.W. 2d 276
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981

      Thomas & Nussbaum. P.A., by: Allan J. Nussbaum, for appellant.

      Friday, Eldredge & Clark, by: Donald Bacon, for appellees.
   Lawson Cloninger, Judge.

In this workers’ compensation case, appellant Harvey D. Mosley appeals a decision by an administrative law judge, which was affirmed by the full Commission, precluding him from benefits because he gave false answers with respect to previous injuries when he made application for work with appellee Heim Brothers Packing Company.

We find there is no substantial evidence to support the finding of causal connection between the false representation and the injury, and we reverse and remand for the taking of further testimony.

Appellant sustained an injury to his lower back on December 18, 1978, while “catching beef’ at appellee Heim Brothers Packing Company’s plant. Appellees accepted the claim as compensable and paid compensation benefits until about October 7, 1979, when the benefits were terminated upon learning that appellant had falsified his employment application.

The full Commission found that the three criteria enunciated in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W. 2d 232 (1979), were present and that appellant was precluded from additional benefits. In Shippers, the Arkansas Supreme Court adopted the test set out in IB Larson’s Workmen’s Compensation Law, § 47-53, which states:

The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and willingly made a false represenation as to his physical condition; (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; (3) There must have been a causal connetion between the false representation and the injury.

Appellant made an application for employment at Heim Brothers Packing Company on May 25, 1978. On the application form, appellant denied ever having a workers’ compensation claim or having any back- injuries, when in fact he had suffered neck and lower back injuries in an automobile accident in August of 1975. He had received workers’ compensation for his injuries for several months, until his employer, Merico Baking Company, discovered the injury was not job-related. There was substantial evidence to support the Commission’s finding that appellant knowingly and willfully made a false representation as to his physical condition.

The former plant manager for Heim Brothers Packing Company took appellant’s application for work and stated that he relied on the applicant’s answer to the question inquiring whether the applicant had suffered previous back injuries; that because of the nature of the work in a meat packing plant, he would not have hired appellant if he had known of his back problem. There is ample testimony to support a finding that the employer relied upon the false representation and that this reliance was a substantial factor in the hiring.

The third factor of the test adopted in Shippers v. Stepp, supra, is the only one seriously contested by the appellant in this case, and it is the point that has been most troublesome in a number of Arkansas cases. Recent cases which have explicitly dealt with the third factor are Baldwin v. Club Products Company, 270 Ark. 155, 604 S.W. 2d 568 (Ark. App. 1980); Shock v. Wheeling Pipe Line, Inc., 270 Ark. 57, 603 S.W. 2d 446 (Ark. App. 1980); and Foust v. Ward School Bus Manufacturing Company, 271 Ark. 411, 609 S.W. 2d 88 (Ark. App. 1980). In Baldwin, the claimant suffered an injury to her “right upper extremity.” She made a statement on her employment application form to respondent Club Products Company that she had never been injured on the job, when in fact she had suffered a previous injury which affected her left arm and hand. The Arkansas Court of Appeals reversed the denial of benefits to the claimant on the basis that there was no substantial evidence of a causal connection between the two injuries. The Court noted that all of the expert medical testimony supported the claimant’s position that there was no causal connection. The dissenters in Baldwin, Judges Penix and Newbern, felt there was substantial evidence, in that the claimant had testified she had been told by her doctor to avoid lifting and repetitive use of her left wrist. The dissenters found this to be sufficient evidence of a causal connection.

In Shock, supra, the claimant falsely stated on his employment application that he had never been injured on the job, when in fact he had previously suffered several injuries including one to his back. After being hired he suffered another back injury. The Court of Appeals held the testimony of a causal connection was incomplete and not fully developed. The Court stated:

In view of this situation we conclude, in the interest of fairness to all concerned, this case must be reversed and remanded for the sole purpose of developing the factual question of whether or not there was a causal connection between the false representation and the injury.

The most recent Arkansas case to deal with the application of the Shippers test as it relates to causal connection is Foust v. Ward, supra. The claimant was injured on the job and ultimately was operated on for severe lower back pain. Although he had answered an employment application question as to previous on-the-job injuries in the negative, he had received an earlier injury to his back. Testimony was also adduced to the effect that the claimant was suffering from a congenital back problem, although there was no evidence the claimant knew of this congenital defect prior to his hiring. In its opinion, the Court clarified the causal connection test, stating that this requirement is “. . . that a causal relationship exists between the previous injury or illness the employee misrepresented and the injury for which he seeks compensation.”

In Foust, the Court found there was evidence that the claimant’s congenital defect was a contributing factor to the injury, but that it could not be held that the claimant misrepresented his condition as required by Shippers, as there was no evidence the claimant knew about the defect at the time he was hired. The expert medical testimony was conflicting and sometimes inconsistent. The Court reversed the denial of benefits and remanded to the full Commission solely for the taking of further evidence with respect to the causal relationship issue.

In Shippers Transport v. Stepp, supra, the Arkansas Supreme Court stated that it is only fair that employers have a right to determine a health history before employment to avoid the possible liability for an accidental injury, causally related to an infirmity. Such a statement indicates, and reason affirms, that the employee has a responsibility to be truthful when making an application for work.

We agree with Judge David Newbern’s ruling in Foust v. Ward, supra, that the third factor should be regarded as a requirement that a causal relationship must exist between the previous injury the employee misrepresented and the injury for which he seeks compensation. There is evidence in the instant case that appellant suffered from a congenital back problem, but, as in Foust, there is no evidence he knew of it when he made his employment application with appellee. This was a condition which might well have been revealed to the employer if appellant had been truthful on his employment application, and demonstrates why public policy demands that an applicant be truthful, but it cannot be considered to show the necessary causal relationship unless the applicant knew of his congenital problem.

The Commission refers to 1973 back injury suffered by appellant, but the record does not reveal such an injury. The Commission also states that appellant sustained an injury to his head and a leg in 1977, but the only indication that this injury was related to the present injury is an inconclusive report from Dr. Harold Chakales, dated November 29, 1979, which states that, “I feel that this is a new injury which started from the injury of 1977. Even though he did injure his back, I am sure that he healed.” Nothing else in the record indicates there was an injury to appellant’s back in 1977.

The report of Dr. Chakales and the finding of the Commission that previous back injuries would predispose the claimant to additional back problems do not constitute substantial evidence. The Commission’s decision is reversed and the matter is remanded to the Commission for the taking of further evidence with respect to the question whether there is a causal connection between the two injuries.

Reversed and remanded.


author: Donald L. Corbin, Judge.

text:
    Debra F. BANKSTON, et al, alleged dependents of Edward Charles BANKSTON, deceased v. PRIME WEST CORPORATION
    CA 80-377
    601 S.W. 2d 586
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981
    [Rehearing denied February 18, 1981.]

      Baim, Baim, Gunti, Mouser & Bryant, by: Kenneth B. Baim, and Brockman & Brockman, by: C. Mac Norton, for appellants.

      Chester C. Lowe, Jr., for appellee.
   Donald L. Corbin, Judge.

This is an appeal by three of five alleged dependents of Edward Charles Bankston, deceased, from a decision of the Arkansas Workers’ Compensation Commission denying them dependency benefits. The appellee employer, Prime West Corporation, stipulated that Edward Charles Bankston suffered a compensable injury which resulted in his death on August 11, 1978. The three remaining appellants are Kajuanna Bankston, Dameon Bankston and Kelli Edwina Bankston.

We think it important to first reiterate the standard of review in workers’ compensation cases. This court on appeal is required to review the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative value in favor of the order of the Arkansas Workers’ Compensation Commission. The issue on appeal is not whether this Court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Taylor v. Plastics Research and Development Corp., 245 Ark. 638, 433 S.W. 2d 830 (1968). The decision of the Commission must stand if supported by substantial evidence. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W. 2d 583 (1979).

I.

We will first consider the appeal in behalf of Kajuanna Bankston. The Full Commission adopted and affirmed the opinion of the Administrative Law Judge that Kajuanna Bankston was not a child of Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302 (j) (Repl. 1976) and that she was not “wholly and actually dependent upon” the decedent within the meaning of Ark. Stat. Ann. § 81-1315 (c) (Repl. 1976).

Debra Faye Bankston, the mother of Kajuanna Bankston, testified that she and the decedent were married on October 13, 1972 and were never divorced. She testified that the decedent left her in June of 1973 and he never again lived with them nor supported them. Debra Faye Bankston testified that Jimmy Williams was the father of Kajuanna Bankston and that Kajuanna was born approximately one month before she married the decedent. Debra Bankston began receiving assistance from the Jefferson County Social Services Office for Kajuanna on October 23, 1973- The Jefferson County Social Services’ records reflected that the father of Kajuanna was Jimmy Williams.

Appellant Kajuanna Bankston argues that she could be classified as either a “stepchild” or “foster child” within Ark. Stat. Ann. § 81-1302(j). We disagree. This child was born before the marriage of her mother to the decedent and it was clearly established that the decedent was not the natural father of the child. Further, the decedent had not lived with nor supported the appellant or her mother since his removal from the matrimonial home in June of 1973. Kajuanna did not sustain her burden of proof to establish that the decedent was not in any manner a “stepchild” or “foster child” within Ark. Stat. Ann. § 81-1302(j) and failed to sustain her burden of proof to establish that she was “wholly and actually dependent” upon the decedent within the meaning of Ark. Stat. Ann. § 81-1315(c).

II.

Appellant Dameon Bankston appeals the decision of the Commission, which held: (1) he was not a child of Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302(j) and (2) he was not “wholly and actually dependent upon” Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1315(c).

Dameon Bankston was born on July 6, 1977. As previously stated, Debra Faye Bankston, mother of Dameon Bankston, had married the decedent in October of 1972 but had not lived with him since June of 1973.

Debra Faye Bankston testified that she had engaged in sexual intercourse with the decedent and a man named Willie Bailey in the latter part of September of 1976. She could not state under oath who was the father of Dameon. Mrs. Bankston had named Willie Bailey as the father of Dameon to the Social Services Office and to an insurance adjustor who was investigating this claim. Regardless of Mrs. Bankston’s reasons or motives for naming Willie Bailey as the father of Dameon to these parties, we do not believe this testimony should deprive Dameon of his legitimacy. A parent’s testimony is incompetent when it is employed to bastardize a child which is presumed legitimate by one of the strongest presumptions found in the law. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920); Kennedy v. State, 117 Ark. 113, 173 S.W. 842 (1915); Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248 (1958).

The presumption of legitimacy of children born during wedlock of two persons has common law and statutory basis in Arkansas. The statutory basis is found in Ark. Stat. Ann. § 61-141(a). In Spratlin v. Evans, 260 Ark. 49, 538 S.W. 2d 527 (1976), the Court stated:

We are met . . . with the common law presumption, long valid in this State, that a child born to a legally married woman is the legitimate child of the husband and the presumption is one of the strongest presumptions known to the law. It is only rebuttable by the strongest type of evidence such as conclusive evidence of impotency of the husband, or nonaccess between the parties at the time of conception. The moral and social reasons for retaining this common law presumption in domestic relations and in the property laws relating to descent and distribution are too obvious and well known to justify comment, and our decisions on this point are so numerous and uniform we deem it unnecessary to cite them.

We find that Dameon Bankston is the legitimate child of the decedent.

The next issue is whether Dameon was wholly and actually dependent upon the decedent. The Arkansas Supreme Court dealt with this issue in Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979). The basic facts in the Roach case are: Glen and Willadean Cole were married in 1965. Their daughter was born in 1966. In June, 1975, Glen left his wife and child in Rector, Arkansas, and moved to Memphis, Tennessee, where he married another woman without having divorced his wife. Willadean knew that her husband was in Memphis, but she supported herself and her daughter and made no attempt to obtain anything from her husband. Glen was accidentally killed in the course of his employment on May 18, 1976. The Court quoted Larson’s summary of the rule applicable under statutes requiring actual dependency as:

Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency. Larson, Workmen’s Compensation Law, § 63 (1976).

The Court, in the Roach case, stated that the mother had elected to attempt to support herself and made no effort during her husband’s 11-month absence preceding his death to enforce whatever legal right to support she may have had. Thus, the Commission could find that she failed, in the language of the amended statute, to “establish in fact some dependency” on her husband at the time of his death. On the other hand, the Court in Roach, supra, noted that the Commission could also find, with respect to a 10-year-old child who was being supported by her mother, that the same lapse of 11 months without legal action on the mother’s part did not demonstrate in Larson’s language that there was no longer any “reasonable expectation of support” on the part of the father. (Emphasis supplied.) The facts in the present case are distinguishable from those in the Roach case. Debra Bankston and the decedent were married in October of 1972. Edward Bankston left in June of 1973 and did not again permanently reside with Debra Bankston. He did not provide support for her from June, 1973, to his death, nor did he provide support for Dameon Bankston from the date of Dameon’s birth to the date of the decedent’s death. Dameon was supported by Willie Bailey. In Doyle’s Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W. 2d 243 (1980), the Court stated that:

when the widow and the child, as here, are not living with the employee at the time of his death, ‘there must be some showing of actual dependency.’ Dependency is a ‘fact question to be determined in light of surrounding circumstances.’ Consequently, dependency of a child is no longer a conclusive presumption.

There is substantial evidence to support the finding of the Commission that Dameon Bankston was not wholly and actually dependent upon Edward Charles Bankston. The source of Dameon’s support was from a person other than the decedent. The case of Continental Ins. Co. v. Richard, 268 Ark. 671, 596 S0W. 2d 332 (Ark. App. 1980) can be distinguished from the instant case because there was undisputed testimony that the decedent in the Continental case regularly contributed to the support of his child. Appellant Dameon, having the burden of proving by a preponderance of the evidence that there existed at the time of the employee’s death either (1) actual support or (2) a reasonable expectation of support, has failed to sustain his burden of proof and for that reason we would affirm the decision of the Commission in denying dependency benefits to him.

III.

Two. issues are raised by appellant Kelli Edwina Bankston’s appeal: (1) is Kelli a “child” of Edward Charles Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302(j) and (2) was she “wholly and actually dependent upon” the decedent within the meaning of Ark. Stat. Ann. § 81-1315(c).

During the course of the trial the Administrative Law Judge stated:

As far as I’m concerned, Mrs. Coleman has established by a preponderance of the evidence that Mr. Bankston was the father of this child.

However, in his opinion, he stated that the appellant had failed to prove by a preponderance of the evidence that Kelli E. Bankston was a child of Edward C. Bankston, deceased, within the meaning of the Arkansas Workers’ Compensation Act. Ark. Stat. Ann. § 81-1302Q provides:

“child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child.

A decision of the United States Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972), held that no distinction as to entitlement to workers’ compensation benefits can be drawn between legitimate and illegitimate children. The reason is that such a distinction violates the equal protection clause of the Fourteenth Amendment. See also, 2 Larson, Workmen’s Compensation Law, § 62.22. We find that Kelli Edwina Bankston was a child within the meaning of the Arkansas Workers’ Compensation Act.

The next question is whether Kelli Edwina Bankston was wholly and actually dependent on support from the decedent. The extent of our inquiry is limited to the determination of whether there is any substantial evidence to support the Commission’s findings. Even if the preponderance of the evidence would indicate a different result, we will affirm the Commission if reasonable minds could reach the conclusion reached by the Commission. Or conversely, we will not reverse the Commission’s finding that the claimant failed to meet his burden of proof unless fair-minded men could not have arrived at a finding adverse to the claimant. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). No evidence was produced by the appellee to contradict the tesitmony of Juanita Coleman, mother of the appellant Kelli Edwina Banston, and other witnesses called in behalf of the appellant. Juanita Coleman testified that she had known the decedent for seven and one half years and had lived with him from May of 1977 to the time of his death on August 11, 1978. She had sexual relations with him prior to May, 1977, and on a permanent basis after he moved in with her. The decedent gave her $100.00 per week and paid all of the bills. He traded in an automobile and acquired a different one in the name of Juanita Coleman. The decedent used this automobile to travel to and from work. His clothes were in her home at the time of his death. He had acknowledged to many people that Kelli was his child. Other witnesses called in behalf of the appellant testified as to the continuing relationship of the decedent to Juanita Coleman and his support of her. We hold, under the peculiar facts of this case, that the clear and undisputed proof of the support of Juanita Coleman by the decedent raises a reasonable expectation that Kelli Edwina Bankston would also be supported by the decedent.

There being no substantial evidence to support the finding of the Commission that Kelli Edwina Bankston was not wholly and actually dependent upon the decedent for support, we reverse.

We affirm in part and reverse in part.