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

text:
    Shirley Ann HOLLOWAY and Billy G. HOLLOWAY v. FARMERS INSURANCE EXCHANGE and UNITED STATES FIDELITY AND GUARANTY COMPANY
    5-5892
    481 S.W. 2d 328
    Opinion delivered June 19, 1972
    [Rehearing denied July 10, 1972.]

      Murphy, Carlisle ér Taylor, for appellants.

      Putman, Davis ir Bassett and Shaw & Ledbetter, for appellees.
   Conley Byrd, Justice.

Appellees Farmers Insurance Exchange and United States Fidelity and Guaranty Company obtained a declaratory judgment holding that appellant Shirley Ann Holloway was not “a resident of the same household” that her husband appellant Billy G. Holloway occupied at the time of her injuries and that Mrs. Holloway was therefore not an insured under the Medical Pay and Uninsured Motorist provisions of the two policies. Mr. and Mrs. Holloway for reversal contend that the Chancellor’s findings are contrary to the law and the evidence.

Admittedly Mrs. Holloway would be covered if she comes within the definition of “named insured” contained in the policies.

The Farmers Insurance Exchange Policy defines “named insured” as follows:

“If the insured named in item 1 of the Declarations is an individual, the term ‘named insured’ includes his spouse if a resident of the same household.”

The U.S.F. 8c G. policy provides:

“NAMED INSURED means the individual named in item 1 of the declarations and also includes his spouse, if a resident of the same household.”

The record shows that the marriage of Mr. and Mrs. Holloway had its “ups and downs.” Their first marriage to which one child was born resulted in divorce. One child was also born to their second marriage. After moving to Wichita, Kansas, Bill Carlisle moved into the home with them. He continued to live there after his marriage to Alicia. On or about February 15, 1969, Mrs. Holloway in the company of the Carlisles left Wichita to go to Phoenix, Arizona. Admittedly Mrs. Holloway has no realtives in Phoenix. She was injured in an allegedly uninsured motor vehicle on March 29, 1969, while on an outing to some motorcycle races at Yuma, Arizona.

It is admitted that on February 25, 1969, Mr. Holloway signed a complaint for divorce, filed in Kansas on March 10, 1969. Service was had by warning order. On April 25, 1969, while still in the hospital at Fayetteville, Arkansas, Mrs. Holloway filed a petition for separate maintenance in which she alleged that the parties had been separated since December 50, 1968, and that she had been a resident of Arkansas for more than 60 days.

Mrs. Holloway testified that she and her husband were having marital problems and that after some discussion, it was agreed that she would go to Phoenix and get away for awhile. She left on February 15, 1969, with Bill Carlisle and his wife in a Chevelle that she considered to be her car. When she left, her husband was present and gave her $50 or $40. Including the money that she had and what the Carlisles had, they had some six hundred dollars between them. She took only a suit case, leaving the rest of her personal things, a sewing machine, an accordian and furniture. There was an understanding between her and her husband that the children would go to the grandparents while she was gone. Upon arriving in Phoenix she and the Carlisles lived in different motels, taking their meals in restaurants. In a week or so after arriving in Phoenix, a bartender borrowed her Chevelle for just a minute and wrecked it. Thereafter they purchased a 1950 Ford for transportation. Not long after they got to Phoenix, Bill Carlisle got in trouble with the authorities and was placed in jail. On the week-end of the accident, Mrs. Carlisle, because of her pregnancy, had gone back to her folks. Before leaving, however, Mrs. Carlisle and Mrs. Holloway had agreed that Mrs. Holloway would contact Bill Carlisle the following Monday, after which she was to return to Wichita. Mrs. Holloway explained that she had not talked directly with Mr. Holloway while she was in Phoenix but that she had done so indirectly through a mutual friend. When asked why she used the mutual friend she replied: “That was the whole purpose of going out there was to be away from each other and not talk to each other for awhile.” With reference to how long she was to be in Phoenix the record shows:

“Q. When you left for Phoenix in the latter part of February of ’69, had you and Mr. Holloway discussed how long you would stay separated?
“A. Yes.
“Q. How long was that?
“A. I was to be out there approximately two weeks.
“Q. As it turned out, you stayed longer, it that correct?
“A. Yes.
“Q. Did Mr. Holloway know why it was necessary for you to stay longer than two weeks?
“A. Yes. Betty called him and told him that Billy was in trouble.”

While in Phoenix Mrs. Holloway became acquainted with Virginia Andrews. At the suggestion of Virginia she went with a group to the motorcycle races at Yuma, Arizona. She had not met any of tbe group except Virginia before that time. Enroute to Yuma, on a Saturday, she was injured and did not remember anything thereafter until the following Tuesday, when she saw her husband standing over her bed. Mrs. Holloway was transported by air ambulance from Arizona to Fayetteville, Arkansas. At Fayetteville, Mr. Holloway visited her every week-end, —commuting from Wichita where he was employed. On April 25, she learned for the first time that her husband had filed the divorce suit in Wichita. Because he wanted to take the children from her parents’ home in Fayetteville to Wichita she called her lawyer and asked him to do something to keep the children from being removed from the state. As a result of that call, the separate maintenance suit set out above was filed. Admittedly Mr. 8c Mrs. Holloway are now living together.

Mr. Holloway testified that his wife left on February 15, 1969, with the Carlisles taking the Chevelle and only one suit case. Her leaving had been discussed and he was present at the time, — in fact he gave her $30 or $40. Before she left he had called her mother and made arrangements for the grandparents to keep the children while she was gone. Mr. Holloway admitted that he and his wife had not seen eye to eye on a lot of things and when asked what led up to the Phoenix trip, he stated:

“Well, she said she more or less kind of wanted to get away for awhile and see just exactly — you know— what she wanted to do, whether or not she wanted to go ahead with her marriage or whether or not we would terminate it, so this is where this Phoenix trip come about.”

According to Mr. Holloway, Mrs. Holloway left on more or less friendly terms with the understanding that she would be back in two or three weeks. At the time she left, she took only one suitcase, leaving her wig, accordion, etc. Other than the indirect communication with Bill Carlisle’s sister Betty, he did not hear from her until the accident. As soon as he heard of the accident, he flew out to Arizona to be with her. He filed the suit for divorce before he heard that Bill Carlisle had gotten into trouble with the law. With reference to the filing of the divorce the record shows the following:

“Q. Now when you went to the lawyer to file suit for divorce, I take it that at that time you had made up your mind that you did not want to stay married to Shirley?
“A. Well, not really. I more or less filed that divorce, I think, because she’d actually stayed away longer that what we’d really planned and I was kind of mad. I guess I wanted to show my authority or something.”

Appellees, to support the Chancellor’s declaratory judgment decree, rely upon Couch on Insurance, 2d § 42: 78 and the case of Neidhoefer v. Automobile Ins. Co. of Hartford, Conn. (7th Cir. 1950), 182 F. 2d 269. Both authorities equate “residing in the same household” and similar policy provisions as referring to domicile. See also Central Manufacturer’s Mutual Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W. 2d 102 (1948). Both Couch and the Neidhoefer case recognize that the controlling issue in determining coverage under such policy provisions is the intent possessed by the departing member of the family. In other words, the departing spouse remains a resident of the household unless the intent of the departing member be that the household be disrupted or his domicile therein be terminated.

In the Neidhoefer case, the parties separated September 12, 1946, the departing spouse commenced her separate maintenance action on October 3, 1946, and at the time of the loss on December 9, 1946, she had taken up her abode elsewhere — in fact making a claim for the losses she stated: “My income is from separate maintenance from my husband. . .from whom I have been separated from since and living apart since September 12, 1946.” In holding that Mrs. Neidhoefer was not a member of the family household on December 9, 1946, the court stated:

“We think that the important and perhaps controlling feature in situations of the instant character is the intent possessed by the departing member of a family. Of course, it is not difficult to visualize a situation where a wife might leave the home for a considerable time and still retain her status as a member of the family and the household, for instance, if she was away on a visit or for some other purpose. In such a situation the separation should be not only with the consent of the husband but with the intent on the part of the wife to return. In the instant case, however, we see no reason to think or infer that Mrs. Neidhoefer, when she separated from her husband and home on September 12, 1946, had any intention other than making such separation permanent.”

Here there is no showing that Mrs. Holloway had taken up an abode other than the one she had with her husband. The fact that the children were left with the husband with an understanding that Mrs. Holloway’s mother would take care of them while she was gone is a very cogent indication that the trip to Phoenix was of a temporary nature.

When the record is viewed from this standpoint together with her testimony and that of her husband that she departed on the trip to Phoenix only for the purpose of getting* away for awhile, we find the Chancellor’s holding that she was not a resident of the household at the time of the accident is contrary to both the law and the evidence.

Reversed.

Brown, Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree that the chancellor’s holding in this case was contrary to either the law or the evidence. In the first place, I do not see how a question of law is involved. Even if the policy clause is properly construed as strongly against the insurers as the majority construes it, the only question before this court is whether a fact finding made by the chancellor is clearly against the preponderance of the evidence. I have no quarrel with the construction of the policy, but I do not agree, as the majority seems to suggest, that a wife is a resident of her husband’s household, as a matter of law, until the parties are divorced. I also disagree on the question of the preponderance. I think that the majority has given the post-accident, post-reconciliation, self-serving testimony of the interested parties full weight and given no attention to the evidence that should be determinative, i.e., the actions and declarations of the parties before the unfortunate collision. I submit that the chancellor was perfectly justified in finding the actions of these parties to carry substantially greater weight than the testimony upon which the majority relies. What the Holloways did speaks so loudly, I do not see how a court of equity can hear what they now say, or a chancery court can be held in error for not doing so.

The decree before us contains this recitation:

That the defendant, Shirley Ann Holloway, was not a resident of the household of the defendant, Billy G. Holloway, also known as Bill Holloway, on March 29, 1969, and was not on said date an insured under Policy No. 0429244618 issued by Farmers Insurance Exchange nor under Policy No. AF8608S67 issued by United States Fidelity and Guaranty Company.

The chancellor made specific findings of fact. They include the following:

I have no difficulty in finding, under the proof offered, that Mrs. Holloway was not a resident of the household of Mr. Holloway at the time the wreck took place and this casualty occurred. I’m not unmindful of the deposition testimony both of Mr. and Mrs. Holloway that they really weren’t serious about their respective divorce actions, and that the separation was a friendly sort of thing, and more for the purpose of working out simmering problems than evidence of a genuine breach; still they cannot get around their respective divorce complaints. Mr. Holloway filed his complaint for divorce some 25 days after Mrs. Holloway left, and absent other evidence, assuming that evidence would be proper, I am constrained to assume that it stated a good cause of action under the laws of Kansas.
It’s true that Mrs. Holloway didn’t file her suit for divorce until after the accident, and at a very close period of time coincident with what Mr. Holloway says was their actual reconciliation, April 25th. Still, her divorce complaint alleges a separation either in early January or the latter part of December, December 30th, and contains recitations which stated a cause of action under the laws of Arkansas.
Now, I don’t think either one of them, after the fact, can look back and say, “Well, we really didn’t mean that. We really weren’t separated. We really weren’t mad at each other, and we really weren’t serious about these divorce cases”; because in truth and in fact, they were living apart. There is some question as between the two divorce complaints as to how long they lived separate and apart. She says from December 30th to April 25th, and he says from February 15 th to March 10th, 30 to 60 days difference. In any event, they were, according to their respective sworn statements, living separate and apart, each alleging grounds which, if proved, would entitle both to a divorce during the period before, at the time of, or subsequent to, the automobile accident.
So, as I say, if you stop there, there is no problem about the findings, and I do find that Mrs. Holloway was not a resident of the same household in the language of the USF&G policy, and the same language in the Farmers policy, a resident of the same household. * * *
* * * But with the definition of relative in Parts I of the respective policies, which is carried down into the uninsured motorist section, I think it makes it dear, with a factual finding that Mrs. Holloway was not a resident of her husband’s household at the time of the accident. I feel that she was not an “Insured” under the uninsured motorist coverage.

I submit that a clear preponderance of the evidence actually supports the chancellor’s findings, and that the findings were certainly not clearly against the preponderance of the evidence.

Mrs. Holloway was a native of Arkansas, and only left the state when she and her husband moved to Wichita in February 1968. Almost as soon as they were established there, Billy Carlisle, a friend of Mrs. Holloway, moved into their home and later brought a bride there. The Holloways even moved into a larger house in order to accommodate him. Difficulties soon arose between the Holloways, and, for some reason, not satisfactorily explained, Mrs. Holloway decided that she needed a vacation from her husband of approximately two weeks which was to be taken in the company of the Carlisles in Phoenix, Arizona. According to Mr. Holloway, she proposed that each make up his mind, during her absence, whether to stay married or not. She took an automobile, which she considered hers, and a sum of money which had been augmented by her husband’s contribution of $30 to $40 and left, taking the Carlisles, sometime about February 15, 1969. Strangely enough, Billy Holloway testified that a Dodge automobile on which one of the insurance policies involved had been issued should have been “titled” in Carlisle’s name. Mrs. Holloway admitted that there was then a possibility that she would divorce Bill Holloway when she left. During this brief vacation and while she and the two Carlisles were hopping from one motel to another and Billy Carlisle was looking for employment, she became so well acquainted with a bartender at a bar and restaurant which she and her companions frequented that she loaned her car to him for “justa minute,” during which time he completely wrecked it. She testified that “we” then bought a 1950 model Ford automobile for transportation. It was in late February or early March 1969 that Billy Carlisle got into trouble with the Arizona authorities, as a result of which he was forced to leave the motel where his wife and Shirley Holloway were staying. Just why this required Shirley Holloway to extend her "vacation” from two to six weeks remains a mystery. We are not favored with any information as to what Shirley Holloway did, proposed to do, or could do to help Carlisle extricate himself from the toils of the law, particularly after Carlisle’s pregnant wife had to come back home, and she stayed to get him “squared away.” At any rate, she was not so involved in this undertaking that she was unable on March 29, 1969, to attend the motorcycle races at Yuma, whither she was bound with newly acquired friends, male and female, on the date of the tragic accident.

Meanwhile, Billy Holloway had taken in another single male roomer two weeks after his wife left. Because of the marital difficulties he had also employed a lawyer to file a divorce suit. Holloway’s affidavit verifying his complaint was dated February 25, 1969, but the suit was not filed until March 10, 1969, at which time either a two- or-three-week “vacation” should have been terminated. Billy Holloway said he filed the suit because Shirley had stayed away longer than planned. He verified, under oath, his allegation that Shirley had left his home on February 15. He said that, as far as he was concerned, he had done all he could do and it was all over when he left the lawyer’s office. It only remained, he said, for the lawyer to pursue the necessary procedures and advise him when he was a divorced man. He admitted that, regardless of his present intentions, he was serious about the filing of the suit.

Billy Holloway did go to Phoenix when he learned of Shirley’s injuries. Still she did not return to his domicile, even after her release from the hospital in Phoenix. She went to her native residence, first to Washington General Hospital in Fayetteville, where she had lived before going to Wichita, and then to her parents’ home, also in Fayetteville. This was also the place where her children were, pursuant to agreement between their parents at the time the “vacation” was proposed by Mrs. Holloway. Billy told Shirley while she was a patient in

the Fayetteville hospital that he had filed a divorce suit. It does not appear that there had been any serious discussions relative to the deteriorated marriage and its rehabilitation until that time. Billy made weekend visits to Fayetteville during this period, and thereafter the two discussed the situation. Shirley referred to her first return to Wichita by saying “we were back together,” and the discussions between her and her husband were referred to as talking about whether they would go back together. She admitted, to say the least, that there was still uncertainty about the matter until after she filed her divorce suit. Billy Holloway described the conversations in the same terms. Even when she did go to Wichita with him, it was on the basis of a trial reconciliation, according to Billy.

Before this trial reconciliation, both Holloways had to dismiss divorce suits in which a separation had been alleged. Shirley Holloway testified that as soon as Billy told her of his suit, she called her lawyer and asked him what to do about it, particularly in view of the fact that she was convinced that Billy was planning on taking the children back to Wichita. She testified that she told the lawyer that she wanted him to represent her in the pending divorce suit and that the lawyer suggested the possibility of a countersuit if that was what she wanted to do. Surely it was no mere coincidence that she alleged residence for the requisite period in the place she had lived until the removal to Wichita, the place where her children had been since the commencement of the “vacation” and the place to which she returned after being injured.

It also seems significant that Mrs. Holloway only conveyed word of her whereabouts to her husband through Billy Carlisle’s sister, but never an intimation of any intention to return to his domicile.

We have, on many occasions, given the ancient proverb “actions speak louder than words” judicial sanction. As recently as Charisse v. Eldred, 252 Ark. 101, 447 S.W. 2d 480, we said:

It is true that the question of intention is one of fact. Phillips v. Melton, supra. Appellant places great reliance upon his own declarations of intention. The question of intention, however, is to be ascertained not only by statements of the person involved by his conduct concerning his “voting” residence. Phillips v. Melton, supra. We have recognized that circumstances may belie protestations of purpose and that the fact finder is not bound to accept the claims of intent when the circumstances point to a contrary conclusion. Williams v. Dent, 207 Ark. 440, 181 S.W. 2d 29. The declarations of the person whose domicile or residence is in dispute may be for a self-serving purpose and are sometimes called the lowest species or quality of evidence on the subject. * * * [Citing cases.] They cannot prevail unless borne out by acts. See Hogan v. Davis, 243 Ark. 763, 422 S.W. 2d 412; Pike County School District v. Pike County Board of Education, 247 Ark. 9, 444 S.W. 2d 72; 28 C.J.S. 45, Domicile, § 18. When acts are inconsistent with a person’s declarations, the acts will control, and declarations must yield to the conclusions to be drawn from the facts and circumstances proved. * * *[Citing cases.]
The place of exercise of one’s elective franchise is not necessarily conclusive as to one’s intent on the question of domicile or residence for voting purposes, but it is certainly important, and may be the most important evidence on the subject. * * * [Citing cases.] In Hogan v. Davis, supra, we said that by executing a voter registration affidavit in another state the registrant had left the matter of his residence” not seriously open to doubt.

We had little trouble in applying the principles above stated in such cases as Hogan v. David, 243 Ark. 763, 422 S.W. 2d 412. I do not see why they are not applicable here. I would affirm the decree.

I am authorized to state that Mr. Justice Brown and Mr. Justice Jones join in this opinion.

       222 Ark. 162, 257 S.W. 2d 931


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Alan D. JOHNSON v. STATE of Arkansas
    5766
    484 S.W. 2d 92
    Opinion delivered September 4, 1972

      Kenneth M. Parsley, for appellant.

      Ray Thornton, Atty. Gen., by: /. N. Tolley, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

This is a case arising under the provisions of Criminal Procedure Rule 1. Alan D. Johnson was convicted in July, 1969, of the crime of robbery and his punishment fixed at fifteen years confinement in the Arkansas Department of Correction, the judgment of the trial court being affirmed by this court. See Johnson and Loyd v. State, 247 Ark. 1086, 449 S.W. 2d 954. In June 1971, appellant was granted permission by this court to file his petition for post-conviction relief in the Pope County Circuit Court, and on August 24, a hearing was held by that court at which time the petition was denied. From the order denying relief, appellant brings this appeal. It is asserted that Johnson’s rights were violated and that he was deprived of the effective benefit of counsel, though counsel was appointed; and further, it is asserted that petitioner was denied a fair trial by reason of pre-trial publicity, and appearing before the jury in handcuffs.

Point one is based upon the fact that the attorney who represented Johnson on trial was not appointed until three days before the trial, and Johnson was not returned to Pope County from the Department of Correction, where he was being held, until the day before the trial. This same point was fully discussed by this court on the original appeal, and, for the reasons therein set out, held to be without- merit. -

Point two ÍS' “double-barreled”. It is argued that pre-trial publicity prevented appellant from receiving a fair and impartial trial, and several copies of newspaper stories (exhibits B, C, D and E) are included in the record; however, Exhibit C was published after the trial; the other exhibits were stories which appeared before the conviction. Exhibit B is mainly a factual account of the robbery, the arrest of appellant and a woman who accompanied him, and a description of the robbers by persons who observed them; there is nothing in the story pinpointing the guilt of appellant; in fact, the account recites that a plea of innocence had been entered to the charges, and there was no mention of any admissions of guilt made by appellant. Exhibits D and E are identically the same, and only describe the teller’s feelings at the time the robbery occurred. The story only refers to the robbers as “a man and a woman”. Certainly, there was nothing in this printed report so highly prejudicial as to deprive Johnson of a fair trial.

Finally, it is contended that the appearance of the prisoner in the courtroom in handcuffs deprived him of a fair trial. This point, like the one just discussed, was not asserted on the original appeal, and in fact, the record of the original trial does not even show that Johnson appeared in the courtroom wearing handcuffs, let alone any objection being made. The only evidence of this occurrence is the testimony of Johnson at the Rule 1 hearing in which he testified that he was handcuffed to his alleged accomplice at the time he entered the courtroom; that he remained handcuffed to this alleged accomplice during the empaneling of the jury, and that after the jury had been selected, the handcuffs were removed. This same contention was made in the case of Rayburn v. State, 200 Ark. 914, 141 S.W. 2d 532, and this court said:

“Another assignment of error is that appellant was brought into the court room handcuffed in the presence of the jury, and that handcuffs were placed upon him on each occasion as he was taken from the courtroom, a fact also observed by the jury. The trial lasted for three days, and no complaint of this action was made during its progress. No contention is made that appellant was prevented from freely consulting with his attorney.
This, we think, was a matter within the discretion of the trial court. Certainly, it was the duty of the officers to prevent appellant’s escape, and they had the right to take such precautions as appeared to them to be reasonably necessary to prevent it.
The case of Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463, is one decided by the Supreme Judicial Court of Massachusetts, in which case the defendants were shackled during their trial, and the court refused to order the removal of the shackles during the trial. It was insisted that the presiding judge had abrogated his authority and control over the defendants in the courtroom to the sheriff, and that this was a violation of the rights of the defendants to due process under the 14th Amendment to the federal Constitution. The defendants were not denied the right to freely confer with their counsel. In overruling this contention it was said: 'It was also the duty of the sheriff to see that the defendants when placed upon their trial were properly guarded to insure their presence there, and that the safety of others was protected. If, as could have been found the sheriff had knowledge that it was advisable and necessary during the trial to have shackles upon them, he violated no legal duty owed to them.’
Trial courts must be allowed a discretion as to the precautions which they will permit officers, having custody of a prisoner upon trial, to take to prevent the prisoner’s escape, or to prevent him from harming any person connected with the trial, or from being harmed. No complaint was made during the progress of the trial that this discretion was being abused, and we think there was no abuse of discretion in this respect.”

Of course, the fact that counsel had been appointed only a short time before the trial, could have had nothing to do with the failure to make an objection. This was an occurrence that arose offhand and if it were felt that this prejudiced appellant in the eyes of the jury, an objection should have been made.

Let it be emphasized that both of the matters here discussed (pre-trial publicity and entering the courtroom handcuffed) were matters that occurred before Johnson’s conviction, and there was nothing to prevent the assertion of error at the time of trial, which would of course, have given this court the opportunity to pass on the questions at the time of the original appeal. In Ballew et al v. State, 249 Ark. 480, 459 S.W. 2d 577, the petitioners’ convictions for assault with intent to kill were affirmed in this court and subsequently permission was sought to proceed in the trial court under our post-conviction procedure. We denied the petition, holding, inter alia, that the grounds asserted for post-conviction relief should have been raised during the trial. We then said:

“Ordinarily motions such as here involved are either summarily granted or denied, but in view of the number of federal habeas corpus petitions made with respect to issues not raised in our trial courts, we have gone to some length here to show merit of giving credence to our procedural rules which are not vastly different from those in practice before the federal courts. Unless such credence is given to our procedural rules particularly with respect to matters within the knowledge and ambit of the defendant at the time of trial, the guilty by merely remaining quiet when he ought to speak can trap society and obtain his liberty after memories have failed, witnesses have died and records are lost. Our laws guarantee to every man charged with crime the right to his day in court before a jury and according to law. In so doing society should be entitled to demand that all issues be tried and litigated on that day, particularly with respect to matters within the knowledge and control of the defendant. Our procedural rules are designed to accomplish that result.”

The language is apropos to the case presently before us.

For the reasons stated, the judgment of the Pope County Circuit Court is affirmed.

       Johnson was tried jointly with the alleged accomplice.


author: George Rose Smith, Justice.

text:
    Clinton FORD v. STATE of Arkansas
    5740
    484 S.W. 2d 90
    Opinion delivered September 4, 1972
    [Rehearing denied October 9, 1972.]

      Burch & Cooper, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In appealing from convictions for burglary, assault with intent to kill, and assault with intent to rape, the appellant contends only that the trial court’s instruction defining reasonable doubt was erroneous. In an opinion delivered several months after the case at bar was tried we held the particular instruction to be bad. Laird v. State, 251 Ark. 1074, 476 S.W. 2d 811 (1972).

We cannot consider the appellant’s argument, for in the court.below there was no objection to the instruction. Price v. City of Trumann, 213 Ark. 50, 209 S.W. 2d 284 (1948). Although Act 333 of 1971 made it unnecessary for a party to save exceptions in criminal cases, it is still required that an objection be made or that the party make known to the trial court the action which he desires the court to take. Ark. Stat. Ann. § 43-2725.1 (Supp. 1971). That statute adopted the rule already prevailing in civil cases. Ark. Stat. Ann. § 27-1762 (Repl. 1962); Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W. 2d 923 (1969). Hence the absence of an objection precludes the appellant from raising the point for the first time on appeal.

Affirmed.


author: Lyle Brown, Justice.

text:
    Howard SMALL v. CITY of Little Rock
    5743
    484 S.W. 2d 81
    Opinion delivered September 4, 1972

      R. David Lewis, for appellant.

      Joseph C. Kemp, City Atty., and David P. Henry, for appellee.
   Lyle Brown, Justice.

This is an appeal from a conviction for driving a motor vehicle while under the influence of intoxicants. For reversal appellant contends he was denied due process of law and the right to bail.

At the time of his arrest appellant was given a “breatholator test” as authorized by Ark. Stat. Anno. § 75-1045 (Suppl. 1971). As a basis for his challenge of due process, appellant alleges that § 75-1045 (c) (3) was not followed in that he was not advised of his right to have a person of his choice (in addition to the officer giving the test) to administer the test. The sub-section provides:

The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete [chemical] test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit the person to obtain such test or tests when such person desires to have such test or tests shall preclude the admission of evidence relating to the test or tests [taken] at the direction of a law enforcement officer.

Had appellant made the appropriate motion and received an adverse ruling, the first point might have been well taken. Instead of asking for exclusion appellant asked that the case be dismissed. The introduction of the evidence furnished no basis for the granting of the motion which was made; there was other evidence of intoxication which made, of itself, a question of fact.

As to the second point — the denial of bail — we find no merit. There is no evidence that appellant either asked for bail or was able to make bail. Furthermore, the denial of bail, standing alone, would not be grounds for dismissal of the criminal charges.

Affirmed.


author: John A. Fogeeman, Justice.

text:
    Robert Clinton PARKER v. STATE of Arkansas
    5745
    484 S.W. 2d 91
    Opinion delivered September 4, 1972.

      Nolan, Alderson ir Jones, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   John A. Fogeeman, Justice.

On March 2, 1971, appellant entered a plea of guilty to a charge of first degree murder, having previously pleaded not guilty and not guilty by reason of insanity on January 18, 1971. In the interim, he was committed to the Arkansas State Hospital for 30 days for observation and examination. The hospital report included a finding that appellant was not mentally ill to the extent of legal irresponsibility at the time of the examination and probably not at the time of the alleged commission of the offense charged. Before accepting the plea of guilty, the trial judge explained to appellant the rights he would relinquish by a plea of guilty and the sentences possible on trial. He also made appropriate inquiries to determine that the change of plea did not result from promises or coercion. In considering the acceptance of the plea, the circuit judge stated that he was cognizant of the records pertaining to appellant in the Arkansas State Hospital and in federal hospitals and that he was of the opinion that a jury might give consideration to a plea of not guilty by reason of insanity.

On January 18, 1972, appellant filed his petition under Criminal Procedure Rule 1 for vacation of his sentence to life imprisonment. He alleged that at the time he changed his plea he was in a "state of demented capacity,” incapable of deliberating soundly upon his acts and "on medication of 800 Thorizene a day.” This petition was denied by the circuit court without an evidentiary hearing, upon findings that petitioner was not mentally ill to the degree of legal irresponsibility on the date his plea of guilty was entered and that the petition and files and records of the case conclusively show that petitioner is entitled to no relief. These findings were based upon the report of the examining psychiatrist at the Arkansas State Hospital and the record of the hearing when the plea was accepted by the court.

We find nothing in the record about the mental capacity of appellant on March 2, 1971. Denial of relief from a sentence upon the ground of alleged mental incapacity at the time of trial without a hearing on that issue, either at the time of trial or upon a postconviction motion was held to be erroneous in Walker v. State, 251 Ark. 182, 471 S.W. 2d 536. While a trial, not a plea of guilty, was involved in Walker, we then pointed out that this court had held that a defendant under sentence was entitled to a hearing upon the question of his sanity at the time of either trial or sentence, if the fact of the alleged insanity at that time was not then made known to the court, even before the adoption of Criminal Procedure Rule 1.

Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.


author: J. Fred Jones, Justice.

text:
    Ivory Lee WILSON v. STATE of Arkansas
    5707
    484 S.W. 2d 82
    Opinion delivered September 4, 1972

      William C. McArthur, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Ivory Lee Wilson was convicted by a Pulaski County Circuit Court jury and was sentenced to life imprisonment for the crime of first degree rape. On appeal to this court he designates five points upon which he relies for reversal, but since we must reverse on the fifth point we need not discuss the others. Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472; Simmons v. State, 233 Ark. 616, 346 S.W. 2d 197.

After electing to testify in his defense at the trial, the appellant admitted sexual intercourse with the prosecutrix at the time and place alleged in the information and as testified by her, but he testified that it was with her acquiescence and consent. The prosecutrix testified that the act was accomplished under the persuading blade of an open pocketknife and the jury apparently believed her. The sufficiency of the evidence to sustain the conviction is not questioned on this appeal, so we discuss it no further.

Under the appellant’s fifth point he contends that the trial court erred in denying his motion for a mistrial because of imflammatory and prejudicial remarks by the prosecuting attorney in his closing argument to the jury. The argument complained of and the objection thereto appears in the record as follows:

“On cross-examination of Miss Fraser, Mr. Carpenter asked her about whether she had made an agreement with the Prosecuting Attorney’s office to accept some sort of recommendation on a plea of guilty with the recommendation being that he receive a suspendéd sentence. She said she had gone along with it. She gave you her reasons why. I’m not going to go over all of her reasons why. Ladies and Gentlemen, the only difference from December 30, 1970, and today is that man is just as guilty as he was going to plead then. The only difference was . . .
MR. MCARTHUR: Your Honor, I’ve got to ask for a mistrial on the basis of that statement. He has stated conclusions not in evidence. There was no mention of a plea of guilty ever being entered by this man on this charge and he just stated to the jury that there has been. If he was not there he should not comment on it.
THE COURT: The jury will remember what the testimony was and be guided solely by the testimony in the case and not accept the statements of counsel as evidence. The motion for a mistrial will be denied.” (Emphasis added).

It is apparent from the record that sometime prior to trial the prosecuting attorney and the appellant’s attorney had carried on some discussions in the nature of “plea bargaining” and that the prosecutrix had been consulted in connection therewith. As already stated, the appellant admitted the act of sexual intercourse but maintained that it was a voluntary act on the part of the prosecutrix. The appellant also steadfastly denied that he had confessed his guilt to a police officer as was testified by the officer. There is no evidence in the record whatever that the appellant ever offered to enter a plea of guilty in exchange for a suspended sentence. The only evidence in the record pertaining to such plea is contained in the testimony of the prosecutrix as first brought out on cross-examination as follows:

“Q. Miss Fraser, did you on December 30, 1970, appear in open court at this court house and recommend to the court that a suspended sentence be given in this case?
A. I appeared before a judge.
Q. Before a judge and you made the recommendation?
A. I did not make that recommendation.
Q. Did you object to the recommendation being made?
A. No.
Q. You did appear in court?
A. I appeared in court.
Q.. And you did not make the recommendation?
A. I didn’t myself.
Q. But the [sic] did not object to it?
A. No.
Q. You did not?
A. No.”

On redirect examination the prosecutrix testified on this point as follows:

“Q. Now, let’s go all the way back to December 30, 1970, about recommending a suspended sentence, or agreeing to it. Was there some sort of an agreement that this man had if he was going to plead guilty that there would be a suspended sentence?
A. Yes.
Q. Okay. Did you make that recommendation?
A. No, I didn’t.
Q. Did you agree to go along with it?
A. Yes.
Q. Why did you agree to go along with it?
A. When I found out that some of my friends were going to have to be subpoenaed for the most part. I mean, it’s bad enough that I have to be down here and to bring somebody in, somebody else who is not involved, it’s a shame, I think. And I hadn’t had any cooperation from the Prosecuting Attorney’s office on a trial that was supposed to have been held in November for another one. There had been a recent rape case in the news for two weeks that they were trying and the publicity had me pretty shook up. I was in finals and I had broken up with my fiance already and I had just had it up to my head with it and I just couldn’t see what I was going to gain from it in the first place. I was just sick of it.
Q. You just wanted it to be over?
A. That’s right.
MR. HAMNER: You may ask.
RECROSS EXAMINATION
By Mr. Carpenter:
Q. Miss Fraser, did I understand you correctly that the Prosecuting Attorney’s officé at that time forced you to make this recommendation?
A. No, sir.
MR. HAMNER: Your Honor, I’m going to object. She has stated twice that she did not make any recommendation herself.
THE COURT: Sustained.
MR. CARPENTER: (Continuing)
Q. Did they force you to remain silent while they made the recommendation?
A. It’s on court records. They just ask me if the recommendation was agreeable with me. You can check that.
Q. What did you say?
A. I said that it was.
Q. All right. What was the Deputy’s name at that time?
A. David Hale.
Q. Mr. David Hale?
A. Yes.
THE COURT: Anything further from the witness, Gentlemen?
MR. CARPENTER: (Continuing)
Q. Did you ever make this recommendation outside the courtroom?
A. No.”

The above testimony elicited from the prosecuting witness is the only evidence in the entire record pertaining to a plea of guilty by the defendant. If any inference is to be drawn from this testimony, it would appear that the appellant refused to plead guilty rather than offered to do so in exchange for a suspended sentence.

In Simmons v. State, supra, we pointed out that one of the fundamental rules of trial practice in this state is that closing arguments of counsel must be confined to the question in issue, the evidence introduced at the trial, and all reasonable inferences and deductions which can be drawn therefrom.

There is no evidence in the record that the appellant ever offered or intended to plead guilty but certainly the jury could have logically inferred from the prosecuting attorney’s statement in his closing argument that the appellant had offered to plead guilty but had failed to do so only because his demands for an outright acquittal, or at least some treatment more favorable to him than a suspended sentence, were not met or agreed to.

Plea bargaining has become a recognized and approved procedure in the practice of criminal law. The primary purpose of plea bargaining is to save the time and expense of jury trials in those cases where the accused is guilty and knows it, but where he might be inclined to save the state the time and expense of proving his guilt in exchange for a lesser penalty than he might reasonably expect at the hands of a jury. Plea bargaining is alien to jury trials and many reasons should be obvious why offers and counteroffers in plea bargaining have no place whatever in the evidence at jury trials.

We cannot say that the appellant was not prejudiced by the prosecuting attorney’s statement in his closing argument in this case. We can say, however, that the trial court’s admonition was not sufficient to remove whatever prejudice the statement may have incurred. Simmons v. State, supra. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Harris, C.J., not participating.


author: Conley Byrd, Justice.

text:
    Floyd SUMMERVILLE v. STATE of Arkansas
    5725
    484 S.W. 2d 85
    Opinion delivered September 4, 1972

      Louis W Rostech, for appellant.

      Ray Thornton, Atty. Gen., by: /. N. Tolley, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Floyd Summerville was convicted of first degree murder and sentenced to life imprisonment for the slaying of W. W. Dobbs. For reversal he contends that the court erred in admitting into evidence' a confession and four .22 caliber slugs.

The record shows that on the night of September 18, 1970, after W. W. Dobbs had gone to bed, he answered a knock on his front door. After requesting his wife to bring him a gun, he was shot at three times through the storm door on his front door. Two of the bullets entered the body of Dobbs; and he died before his wife could help him to the bed. At about the same time or within a few minutes thereafter, four other neighbors of Dobbs received a knock on their door from a man wanting to get a drink of water or to get some battery jumper cables to start an automobile. Three members of the Onstott family identified appellant as the person calling on their home and as the person shooting at Mr. Onstott. Two of the .22 bullets involved were recovered from Dobbs’ body, the third from the Dobbs’ home and the fourth from the Onstott home. A ballistics expert identified the four bullets as being of the long-rifle type and as having an identical lubricant coating on them consistent with Remington brand ammunition.

The trial court determined the voluntariness of the confession in a “Denno Hearing” upon the testimony of Deputy Sheriff George Littles. George Littles testified that he advised the appellant of his constitutional rights before interrogating him and that appellant read the “Miranda Rights” form which was signed in the jail at approximately 5:45. The confession was given in the sheriff’s office starting at 8:45, after the officers had explained to appellant the evidence connecting him with the murder.

The objection in the trial court to the introduction of the .22 caliber slugs into evidence was as follows:

"I’m going to object to the introduction of those. The slugs that were taken out of the Dobbs’ house. I’m going to object to those others as coming from another crime. They have attempted to bring out an onslaught on some other individual, the Prosecutor is going to testify that some individual shot at some other and that’s another crime. He’s attempting to bring in here some evidence that was taken out of another house and dealing with another crime, Your Honor, in order to convict this man of murder. I’m going to move this time for a mistrial because the boy is charged with murder in the first degree and it’s highly prejudicial to bring in an onslaught of any other crime that he is alleged to have done in the face of the jury to try him on murder.”

The proof here is that appellant knocked on the doors of a number of homes in the same area and on the same night and that on such occasion he used a .22 caliber pistol in firing, at Dann Onstott. Such proof was admissible to show the identity of appellant as being the one who knocked on the Dobbs’ door in a similar manner. The proof that the .22 caliber bullets were of the long-rifle type and of the same brand of ammunition was nothing more than another thread of evidence connecting appellant with the shooting of Dobbs. For this purpose the evidence was competent even though it showed the commission of other crimes. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971), and Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967).

The time between the signing of the rights form and the writing of the confession as well as appellant’s psychotic symptoms during and after his military service of course are factors bearing upon the voluntariness of his confession but on the record here made we cannot say that the trial court’s finding on the voluntariness of the confession is not supported by the evidence. Other than the innuendoes raised in appellant’s brief by the time lapse and appellant’s psychotic symptoms while in Vietnam, all of the evidence is to the effect that the confession was voluntary.

Affirmed.


author: Frank Holt, Justice.

text:
    John PRUITT v. STATE of Arkansas
    5730
    484 S.W. 2d 87
    Opinion delivered September 4, 1972

      Donald Poe and Donald Goodner, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen.,, for appellee.
   Frank Holt, Justice.

The appellant was convicted of the crime of first degree rape by a jury which imposed a life sentence in the State Penitentiary. There was no appeal from that judgment. After two years as an inmate he now has filed a petition for post-conviction relief pursuant to our Criminal Procedure Rule 1. The trial court, by written findings of fact and conclusions of law, dismissed appellant’s petition. On appeal the appellant first contends for reversal that “his apprehension without warrant in his home and isolation in jail without bail and questioning by prosecuting attorney without being advised he was entitled to counsel and he could remain silent were acts and conducts on the part of the State invading and destroying his constitutional rights.” We find no merit in these multiple contentions.

The appellant was arrested at his home without a warrant. The arresting officer testified that the mother of the eight-year-old victim complained to him and he referred her to the prosecuting attorney. Thereupon the prosecuting attorney called the arresting officer and instructed him to apprehend and arrest the appellant inasmuch as there was a warrant being issued charging appellant with the crime of rape. The records reflect that an information charging this offense was filed by the prosecuting attorney and a bench warrant issued for appellant’s arrest on this same date. The bench warrant was served on appellant in jail the following day. The arresting officer also testified that when he arrested the appellant he advised him that a warrant had been issued for him for the alleged crime. Certainly there were sufficient reasonable grounds for the officer to believe appellant had committed the alleged felony and, therefore, his arrest was valid without a warrant. Ark. Stat. Ann. § 43-403 (1971 Repl.), Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959), Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969).

In response to appellant’s testimony that he was never advised of his constitutional rights, the state adduced testimony from an arresting officer that appellant was advised of his rights at the time of his arrest. Also, the next day this witness was present along with another officer when the prosecuting attorney advised appellant of his constitutional rights or the Miranda requirements. This evidence is sufficient to support the trial court’s finding that appellant was advised of his constitutional rights. Indeed, the appellant in his argument admits that no confession was ever secured from him. The officers merely testified that appellant said he was too drunk to remember his activities except that he thought he “got stuck somewhere” and had to be “pulled out.” As to being held without bail, we observe that no testimony was adduced that application for bail was ever made or denied.

Appellant next asserts he was denied the right to testify and available defense witnesses were not “called or used.” The appellant testified that he expressed the desire to take the witness stand in his own behalf and was advised by his attorney that “it wouldn’t do any good for me to testify.” Appellant’s wife testified that she was present and available as a witness and desired to testify, and appellant’s counsel told her that “it would be better if we didn’t testify.” The appellant’s attorney testified that since the appellant had previously been convicted of crimes of homicide and indecent exposure that he advised him about the “hazards” of taking the stand inasmuch as the state could elicit this information on cross-examination. However, the attorney testified that he left the decision to the appellant as to whether he should become a witness and that appellant on his own accord decided not to do so. His attorney further testified that appellant’s wife refused to testify in his behalf. Also, he had contacted the individuals furnished him by appellant and they refused to appear as witnesses in appellant’s behalf. We have held that an attorney’s trial tactics and strategy involving elements of discretion and judgment, about which competent counsel might honestly disagree “after the event” or trial, do not constitute the denial of a fair trial. Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969). In the case at bar, appellant’s court appointed counsel is a veteran practitioner of approximately 30 years, which includes experience as a prosecuting attorney and city attorney. Appellant’s trial counsel filed various successful motions relating to appellant’s defense including a commitment to the state hospital for a sanity examination. Following appellant’s conviction, the attorney promptly filed a motion for a new trial. Before he could perfect the appeal, the trial court relieved the court appointed attorney at appellant’s written request. Appellant did not pursue the appeal. Appellant’s presently retained counsel initiated this proceeding for post-conviction relief.

Appellant next contends for reversal “that state’s witnesses fabricated facts against him of which he could not have been guilty, and to which he did not have any opportunity to rebut.” Appellant does not favor us with an argument in support of this assertion. Suffice it to say that we agree with the trial court’s finding that the credibility, bias, and prejudice of witnesses are issues of fact, which are properly presented at the original trial and do not come within the purview of post-conviction relief. Our Criminal Procedure Rule No. 1 was not designed or formulated to provide a petitioner with a new trial based upon issues of fact which were or could have been raised at the original trial. Cox v. State, 243 Ark. 60, 418 S.W. 2d 799 (1967), Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1970).

In the case at bar, after fully reviewing and canvassing the record, we are of the view that the evidence is sufficient to sustain the trial court’s refusal to vacate appellant’s sentence and the appellant has not demonstrated a violation of his constitutional rights.

Affirmed.


text:
    Will A. McDONALD v. STATE of Arkansas
    5737
    484 S.W. 2d 345
    Opinion delivered September 11, 1972

      Larry S. Patterson, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Will A. McDonald was convicted of forgery in Hempstead County on October 4,1971, and was also convicted as an habitual criminal. From the judgment entered in conformity with the verdicts, appellant brings this appeal. The first three points for reversal are that the verdict was contrary to the evidence, contrary to the law, and contrary to both the law and the evidence. In other words, it is contended that there was no substantial evidence to support the Verdict. The testimony on the part of the state reflected that L. C. Hill, incarcerated in the Hempstead County jail on a drunkenness charge, had in his possession a blank check, his ñamé and address appearing in print on said check, together with the name of the bank, the First National Bank of Hope. Hill did not know what happened to the blank check but he testified that a check made payable to a Jessie Wither-spoon in the amount of $45.25, and purportedly signed by Hill, was not his signature but a forgery. He stated that he knew no Jessie Witherspoon, and did not authorize any person to write such a check, and did not receive any of the money. Jewell Pree testified that she visited appellant, Will McDonald, at the jail, where he was being held. She said that McDonald gave her a check and she identified the check in question (state’s exhibit No. 1) as the one.given to her, McDonald asking her to cash the check. This was done at the Kroger Store where she purchased some groceries, taking the balance to McDonald. The witness stated that McDonald told her that he had been given the check by another inmate and that the purpose of obtaining the money was for the two men to have sufficient funds to “get out on bond”. She said that she was McDonald’s girl friend. A deputy sheriff testified that Jewell Pree visited McDonald almost every day, and also talked to several other prisoners. L. B. Greer, Sheriff of Miller County, testified that he received a letter from McDonald while the latter was being held in the jail. This letter was subsequently turned over to Howard Chandler, Questioned Document Examiner for the Arkansas State Police. Chandler stated that he had been in this field of work for sixteen years, had testified in state and federal courts, and had attended the Questioned Document School in Washington, D. C., maintained by the United States Secret Service. The witness who, according to his testimony, examines about 1500 exhibits per month, said that he had examined the check and the letter, comparing the two, listing a number of similarities, and that it was his opinion that the check was written by the same person who wrote the letter. While McDonald himself took the witness stand and denied his guilt, stating that another prisoner, Earl Murphy, gave Jewell Pree the check, and while other witnesses offered testimony to the effect that the other prisoner, Murphy, forged the check, the determination of which witnesses were telling the truth was, of course, a matter for the jury to determine. It is obvious that they accepted the facts as related by the state’s witnesses and we find that there was sufficient evidence to sustain the conviction.

It is next asserted that the trial court erred in admitting into evidence the letter which was used by Chandler in making the handwriting comparison since the contents thereof were such as to arouse and inflame the jury against appellant. The letter set forth complaints about the food given to prisoners, and asserted that white people were fed better than black people, and stated “You all don’t like black men and I don’t like no white man”. It is argued that the officer was given other samples of McDonald’s handwriting and these could have been used in making the comparison instead of the letter here under discussion. Counsel for appellant questioned Chandler as to whether there were other documents and then asked “Is there any reason in your own mind why these documents were not brought here today and introduced?” Chandler replied “Yes, sir, there is”. Defense counsel did not pursue the matter and asked Chandler no further questions with regard thereto. Subsequently, the officer testified that he needed, for comparison, five times the amount of writing thát appeared on the check in order to obtain a good analysis, though it is not entirely clear that this was the reason he had in mind.

The court, not once, but twice, instructed the jury that they were to disregard the contents of the letter, and that it was admitted only as being in the handwriting of appellant. There is no showing by McDonald of how the contents prejudiced the jury against him; only the inference that white jurors would have been angered. For that matter, there is no showing of the race of the jurors, i.e., how many white persons and how many black persons were serving on the jury that convicted McDonald. In the case of Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834, it was contended that certain pictures offered in evidence were inflammatory and that their admission constituted error. This court, citing previous Arkansas cases, and quoting from Wharton’s Criminal Evidence Twelfth Edition Volume Eleven, Page 64, held that when photographs were otherwise admissible, and pertinent to proving the charge, the fact that a photograph may be gruesome, or likely to inflame or prejudice the jury, is not a valid objection. We are of the view that the same reasoning applies to letters.

Finally, it is asserted that the trial court erred in failing to grant the motion of appellant for dismissal of the charges against him with prejudice because of the failure of the state to afford the appellant a speedy trial as required by law.

Ark. Stat. Ann. § 22-310 (Repl. 1962) provides that the terms of the Hempstead County Circuit Court shall commence on the first Monday in April and October. The information against McDonald was filed on June 12, 1970; accordingly, the charge was instituted during the April, 1970 term. In Stewart v. State, 13 Ark. 720, this court, through Chief Justice Watkins, in interpreting a section identical with our present statute, Ark. Stat. Ann. § 43-1708 (Repl. 1964), stated:

"The unavoidable construction of it is, that, in order to entitle the accused to be discharged for such cause, there must be, on the part of the State, a failure of three terms to bring him to trial, that is to say, at the end of the second term which shall be held after the finding of the indictment, [our emphasis]’’

See also Ware v. State, 159 Ark. 540, 252 S.W. 934; Thorne v. State, 247 Ark. 346, 445 S.W. 2d 481.

No action was taken during the October, 1970 term. In the month of July, 1971 (during the April, 1971 term) a motion was filed by appellant seeking dismissal of the information on the basis of an allegation that appellant had not been granted a speedy trial. In the alternative, it was prayed that the case be set down for an immediate trial. The prosecuting attorney filed a response setting out that appellant was not entitled to be discharged under section 43-1708, nor under the decisions of this court, since the statute requires that a defendant be afforded a trial by the end of the second term after the filing of the information, the term in which the information was filed not counting as one of the twcl terms. The record does not reveal any order made by the cc xrt in response to the motion. But, at any rate, in effect there was a denial of same, and in September (still the April, 1971 term) the court set the case for the first day of tlie October 1971 term, October 4.

Now, when the motion was filed, McDonald was not entitled to a dismissal because two terms had not elapsed subsequent to the term in which the information was filed and two terms did not lapse until the end of the day just before the case was set, October 4. On the day of trial however, the motion was not renewed, and in fact, about ten days before October 4, appellant petitioned the court for an order directing the Sheriff of Hempstead County to secure a witness from the Arkansas State Department of Correction to testify on behalf of appellant at the trial. This motion was granted. It thus clearly appears that appellant acquiesced in the setting of the case for October 4.

On the whole case, no reversible error appearing, the judgment of the Hempstead County Circuit Court is affirmed.

It is so ordered.

Brown, J., not participating.

       The witness stated “The points of similarity would reach an astronomical figure”.

       See also Robinson v. United States, 144 F 2d 392, where an objection was made to the introduction of letters written by appellant and used for handwriting comparison with a ransom note on the basis that the letters were in the nature of involuntary confessions of guilt and therefore inadmissible. The court held the contention to be unsound.


text:
    C. K. FISH Jr. et ux v. S. C. BUSH
    5-5962
    484 S.W. 2d 525
    Opinion delivered September 11, 1972
    [Rehearing denied October 9, 1972.]

      Brockman, Brockman ir Gunti, for appellants.

      John F. Gibson, for appellee.
   George Rose Smith, Justice.

This is a boundary line dispute involving a fence that two brothers, Bob and S. C. Bush, erected between their respective tracts in 1955, or possibly even earlier. The appellants, who have acquired the Bob. Bush land, contend that the fence became the boundary by acquiescence on the part of the two brothers over a period of fifteen years or more. The chancellor rejected that theory and, relying upon the testimony of surveyors, fixed the disputed line a few feet north of the fence. For reversal the appellants contend primarily that their claim of a boundary by acquiescence is supported by the weight of the evidence and, alternatively, that the cause should be remanded for further proof. We cannot sustain either contention.

The suit involves a quarter section of land described, as the Northeast Quarter of a certain Section 31 in Lincoln county. About 30 years ago the land was owned by J. F. Bush. He conveyed to one of his sons, Bob Bush, the north half of the tract and the east ten acres of the south half, totaling about 90 acres. Mr. Bush conveyed to his other son, the appellee S. C. Bush, the rest of the tract, comprising about 70 acres. The brothers, to keep their cattle separated, erected fences approximately following the boundary between their tracts. The present controversy involves only the east-west fence along the north line of the appellee’s 70 acres, the boundaries of the ten-acre parcel not being in dispute. .

The Bush brothers occupied their respective tracts until Bob’s death in 1969. A controversy about the boundary line soon arose between the appellee S. C. Bush and the appellants, C. K. Fish, Jr., and his wife, who acquired the Bob Bush land in 1970. The Fishes filed this suit to quiet their title to all the land north of the fence, relying upon the theory of title by acquiescence. The appellee filed an answer and counterclaim disputing the fact of acquiescence and asking that the line be fixed in accordance with a survey made by I. W. Guthrie. The chancellor, as we have said, fixed the line a few feet north of the fence.

The parties are not basically in dispute about the principles of law governing a boundary by acquiescence. The basic question is one of intention: Did the adjoining landowners mean to recognize the fence as the boundary? The controlling distinction was clearly stated by Justice Bohlinger in Carney v. Barnes, 235 Ark. 887, 363 S.W. 2d 417 (1962): “The case hinges on whether or not the old fence and the fence row was an agreed line between the two pieces of property. While the construction and maintenance of a division fence, when mutually regarded as a boundary, may constitute recognition and acquiescence, mere existence of a fence between adjoining land owners is not of itself sufficient. There must, therefore, be a mutual recognition of the fence as the dividing line.”

The chancellor’s rejection of the theory of acquiescence is, in our opinion, supported by the weight of the proof. The appellee, who alone had first-hand knowledge of the agreement between him and his brother, testified that the fence was not intended to represent the boundary. The brothers built the fence, as a joint effort, for the sole purpose of keeping their cattle apart. They had had the land surveyed, but they did not think the survey to be accurate, as the retired surveyor who did the, work kept running to the right and to the left, and missed a corner by 20 feet. The brothers decided to put the fence up as a temporary division until an accurate survey could be had. That the fence was not meant to be the permanent line is confirmed by the fact that it was not straight, being nailed to trees at many points. Allie Rogers, who helped build the fence, corroborated the testimony of S. C. Bush, as did Bush’s wife and his sister. There was testimony to the contrary, principally that of Bob Bush’s widow. Upon an issue that essentially narrows down to a question of credibility, we cannot say that the chancellor’s decision is against the preponderance of the evidence.

Upon the second point, the appellants conclude their brief by asking that the case be remanded “to have the parties offer sufficient evidence to determine the true and correct boundary by a surveyor.” Such a remand is not a matter of right. Occasionally we do send an equity case back for additional proof when there is justification for a deficient record. For instance, we followed that course in Hutchison v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955), because an important question of fact had been overlooked by all the parties both in the trial court and here. Our general rule, however, is not to allow cases to be tried piecemeal. Edwards v. Johnson, 227 Ark. 345, 298 S.W. 2d 336 (1957). Absent special circumstances, “it is not our practice to prolong litigation by affording an opportunity for the taking of proof that should have been introduced before the parties rested their case.” Upshaw v. Wilson, 222 Ark. 78, 257 S.W. 2d 279 (1953).

Here we find no special circumstances to justify a piecemeal trial of an issue that was clearly recognized by the pleadings and the proof. By counterclaim the appellee asked that the boundary be fixed according to Guthrie’s survey. The appellants disputed the accuracy of that survey; so the point was at issue.

At the trial Guthrie’s testimony made a prima facie case for the appellee. Actually the appellants’ own surveyor, Thurman, corroborated much of Guthrie’s testimony. Both expert witnesses accepted the fence along the south boundary of the quarter section as the true line. Both men relied upon an ancient iron stake to fix the northwest corner of the quarter section. In fact, that point could have been fixed a few feet farther north, at a fence; but the appellants are not in a position to complain, for they were awarded that overage and thus received more than half of the quarter section.

Guthrie found another ancient iron stake at the northeast corner of the quarter section, which he considered to be correctly placed. Thurman did not find that stake, perhaps because he determined the east boundary by running north from the northwest corner of the ten-acre tract instead of along the east boundary of the quarter section. Even so, Guthrie found the eastern boundary to be 2,675.8 feet long, while Thurman, starting at the same fence on the south, found it to be 2,677.5 feet long. Thus the difference between the two half-mile lines was less than 24 inches.

The appellants’ request for an opportunity to adduce additional proof really rests upon the inability of either Guthrie or Thurman to declare with absolute certainty that the fences and stakes upon which they relied conformed exactly to the original Government survey. Yet opposing counsel could not have interviewed their own expert witnesses before the trial without knowing of that uncertainty. The trouble was that the quarter section, as enclosed by fences, contained slightly more acreage than the Government survey called for. Both surveyors stated that it would take a great deal of additional work to determine where the overage came from. In fact, the appellants’ surveyor, Thurman, doubted his own ability to make that determination.

The chancellor fixed a line bisecting the quarter section as evenly and as fairly as the proof permitted. Counsel apparently introduced all the evidence that they thought to be necessary. No request for an additional survey was presented to the trial court. See Garren v. Kelley, 249 Ark. 906, 462 S.W. 2d 861 (1971). We are unwilling to prolong this litigation by remanding the cause for further proof that could have been offered in the first instance (if it is actually available) and that would in all probability demonstrate at most only a slight variation from the line fixed by the chancellor.

Affirmed.


text:
    C. W. WISDOM et ux v. Carrol THOMAS et al
    5-5995
    484 S.W. 2d 348

      Opinion delivered September 11, 1972

      Mooney ir Boone, for appellants.

      Frierson, Walker, Snellgrove ir Laser, for appellees.
   Lyle Brown, Justice.

This is an action brought by appellants to quiet title as against the claim of appellees to a right of way for a road to appellees’ property. The road traverses a portion of appellants’ land. The chancellor held that appellees had acquired fifteen feet by agreement and nine feet by prescription. Appellants challenge the sufficiency of the evidence to sustain both findings.

Floyd Dority was the owner of an unplatted forty-acre tract of land near the city of Jonesboro. Eventually he sold all of die west twenty acres to various persons for home-sites. In 1961 Dority sold to Wisdom and wife, appellants, a building site near the center of the twenty acres. Appellees, Carrol, Jesse and Johnny Thomas, became the owners of homesites north of appellants’ property and in the same twenty acres. The appellees were desirous of a roadway running north and south across the east side of the twenty acres. At that time Dority still owned all the east twenty acres of the forty-acre tract and according to appellees he granted “up to fifteen feet” for a road which would split the forty acres. Subsequently thereto, Mr. Dority sold to the Wisdoms approximately three acres out of the east twenty acres and adjoining the Wisdoms. That acreage, of course, was on the east side of the proposed road. In the latter deed there was excepted a “public road right of way off the west side thereof.”

Carrol Thomas built the first house to face the disputed road. He testified that appellant Wisdom agreed, without qualification, to contribute fifteen feet to the roadway. Subsequently, in 1962 or 1963, gravel was spread 6n the road. This was done with the assent of appellant Wisdom. Most of the neighbors joined in to help with the road and the county judge also contributed gravel. A fence post on the west side of the road and at the northeast corner of appellants’ original grant was set back nine feet off the actual property line. That was done by Johnny Thomas but appellant Wisdom made no protest. The roadway was used by all the neighbors, including appellants, without incident for more than eight years.

The findings of the chancellor with respect to the fifteen feet granted by Mr. Dority are clearly not against the preponderance of the evidence. Appellant Wisdom candidly conceded that he shared the cost of the gravel on the east side of the road. With respect to the nine-foot easement by prescription found by the chancellor, the moving of the line fence post, the spreading of gravel on part of the easement, and the construction of the utility lines under the nine-foot strip, tilt the scales of preponderance in favor of the chancellor’s findings. At least we cannot say his findings were against the preponderance of the evidence. Even if the conflicting evidence were evenly poised, we would defer to the judgment of the chancellor, who is in better position to determine credibility. Alley v. Martin, 250 Ark. 74, 464 S.W. 2d 591 (1971).

Appellants insist that the granting of fifteen feet by Dority was conditioned that the landowners on the opposite side give a like amount, which was not done. Mr. Dority’s testimony does not exactly sustain that contention. When asked if there were such an agreement he replied: .“I wouldn’t say that there were or were not [such an agreement]. I don’t remember that well. We just discussed the road and I said I am willing to give 15 feet if everybody agrees and thinks that’s all right and I assumed that everybody was happy because the road was built.” Additionally, Mr. Dority permitted the road to be built without fifteen feet being utilized on the other side from his property. And it has been used by the public generally since it was established, all without objection from Dority. With respect to any agreement by appellant Wisdom there was testimony that he agreed to give up to fifteen feet and that “he did not put any qualifications on it.”

With respect to a nine-foot easement granted by prescription, appellants insist that when the proper law is applied the chancellor was in error. They cite Williams v. Fears, 248 Ark. 486, 452 S.W. 2d 642 (1970) for the proposition that permissive use does not ripen into a prescriptive right until positive notice of adverse claim is conveyed to the owner. That case is also authority for the proposition that permissive use can ripen into a prescription by positive notice to the owner and holding thereafter continues for the statutory period. Also, see Styers v. Northern, 241 Ark. 1023, 411 S.W. 2d 296 (1967). A license to use another’s land is not revocable where the grantee has been induced to spend time and labor towards its enjoyment, without reimbursement; the use thereof can ripen into prescription. Wynn v. Garland, 19 Ark. 23 (1857). The appellants stood by for the statutory period and permitted appellees to spread gravel on most of the nine-foot strip, construct utility lines thereunder, and move back a fence post; appellants witnessed the improvement for passageway purposes by the neighbors, by county and city equipment, and the use of the way by the landowners and the public in general. In fact the appellants used the road themselves. Under those circumstances we cannot say the finding of the chancellor that prescriptive rights were vested in appellees is against the preponderance of the evidence.

Affirmed.


text:
    James B. JACOBS v. STATE of Arkansas
    5759
    484 S.W. 2d 343
    Opinion delivered September 11, 1972

      Louis W. Rostech, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was sentenced to five years in the penitentiary for violation of the Arkansas Hot Check Law. His petition under our Criminal Procedure Rule I for discharge was denied. He contends that his constitutional rights were violated in that his plea of guilty was not voluntary, and that his trial attorney should not have been permitted to testify as to conversations between appellant and his attorney.

Under date of June 2, 1970, appellant’s attorney, R. W. Laster received a retainer fee. The following day the attorney wrote a letter to appellant, who was incarcerated, containing the following:

This morning I had an opportunity to discuss your cases with the prosecuting attorney’s office. In addition to the four checks which they have you charged with, they are holding two or three others which they have not filed upon. **** I am to meet with him [prosecuting attorney] and Judge Kirby Friday morning at 9:30 and try to work out a settlement. **** I believe that Judge Kirby will go along with this, and I will probably have the sheriff bring you up Friday afternoon to enter a plea to the charges against you. If you are called up Friday to enter a plea, it will be with the understanding that you will be given a suspended sentence and probation and an opportunity to go to work and make restitution ***.

When appellant was brought before the court at the appointed time the deputy prosecuting attorney advised appellant’s attorney that the State could not agree to recommend a suspended sentence; that the prosecutor, since his previous talk with appellant’s attorney, had reviewed appellant’s criminal record and it revealed a number of convictions for bad checks. The trial judge agreed that he could not give a suspended sentence under the circumstances, and that if he entered a plea of guilty he would impose a sentence of five years. Thereupon appellant entered a plea of not guilty. According to appellant’s attorney, appellant, after conference between the two, changed his mind and said he would take the five years. Appellant was again brought before the court and this colloquy occurred:

The Court: Your lawyer says you are willing to take five years, is he right or not?
Defendant: Yes sir.
The Court: Would you rather have me try you five different times and order each sentence to commence at the expiration of the other one?
Mr. Laster: What he is talking about is five and five and five and five which will be twenty years.
Defendant: I am ready to take it, your honor.

We agree with the trial court that there was substantial evidence that the plea of guilty was free and voluntary. When the appellant approached the bench for the first time, he was told by the court that appellant would not be given a suspended sentence on a plea of guilty; in fact the court went a step further and informed appellant that a plea of guilty would result in a sentence of five years. The appellant started to leave but returned shortly and informed the judge (after consultation with his lawyer) that he wanted to change his plea and take five years. Appellant made his announcement before anything was said about being tried on the five year counts separately and have the sentences run consecutively. The effect of the comment about five consecutive sentences could have, of course, reassured appellant that five years on a plea of guilty was the better course for him to follow. See Nelson v. State, 252 Ark. 451, 479 S.W. 2d 556 (1972). In a case with substantially the same fact situation we affirmed. Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968).

With respect to the second point, the court did not err in permitting appellant’s trial attorney to testify concerning communications between them. Appellant testified that Mr. Laster misrepresented that appellant would receive a suspended sentence. When an issue of a breach of duty is asserted by a client, the attorney is no longer bound by his obligation of secrecy. In those circumstances he may testify as to the facts. Coley v. Hall, 206 Ark. 419, 175 S.W. 2d 979 (1943); Heinemann Dry Goods Co. v. Schiff, 167 Ark. 422, 268 S.W. 596 (1925); Hunt v. Blackburn, 128 U.S. 464 (1888); Pruitt v. Peyton, 243 F. Suppl. 907 (1965).

Affirmed.