author:
John A. Fogleman, Justice.
      Carleton Harris, Chief Justice,

text:
    Barbara Smith COUSINS v. Jimmy Wayne SMITH
    5-6178
    491 S.W. 2d 587
    Opinion delivered March 12, 1973
    [Rehearing denied April 9, 1973.]

      Franklin Wilder, for appellant.

      Willard Crane Smith Jr., for appellee.
   John A. Fogleman, Justice.

Barbara Smith Cousins, the mother of Melissa Gail and Kimberly Ann Smith, aged 6 and 3 respectively, contends that the chancery court erred in denying her custody of her children. Appellant and Jimmy Wayne Smith were married June 11, 1965, and divorced March 5, 1971, by decree entered in the Superior Court in Elkhart, Indiana, which awarded custody of the children to appellee and permitted him to remove them to Ohio, the state to which he had then removed and where he now resides. The children had been in the custody of their father since March 1970, and had remained there until June 9, 1972, when they came to visit appellant in Fort Smith, pursuant to a stipulation entered into between their parents on February 16, 1972, giving appellant certain visitation rights. On July 5, 1972, during this visit, appellant petitioned the Chancery Court of Sebastian County for a writ of habeas corpus awarding her custody. Appellee responded, contending that he was legally entitled to custody of the two daughters.

Appellant’s petition was denied because the chancellor found that there had been no substantial change in circumstances since the date of the stipulation. As appellant states, the Arkansas court had jurisdiction to change custody of the children if there was a substantial change in conditions and if the best interest of the children required it. See Hamilton v. Anderson, 176 Ark. 76, 2 S.W. 2d 673.

Appellant based her claim to custody upon allegations that the children were unlawfully in the custody of Smith, that she had been deprived of them through the fraud and deceit of appellee and that there had been a substantial change in conditions since the divorce decree in that she had remarried and could now provide them a good home, but previously she had no home for them. In support of her allegations, appellant (then 24 years of age) showed that she and her present husband were living in a good neighborhood in a $40,000 home in which there were three bedrooms and 2 1/2 bathrooms, that her husband had an income of $20,000 per year, that since it was unnecessary for her to work she could spend all her time with the children, that the children attended Sunday School and church regularly while with her, that her husband was interested in the children and could support them, and that the children seemed healthy, happy and well adjusted in her home. Mrs. Cousins expected the birth of another child in November 1972.

The divorce decree was entered in a suit brought by appellee upon default by appellant. Although she contends that she had no notice of this decree and admittedly had been assured by appellee at one time that he would dismiss the case, she obviously knew that the suit had been filed and had known that a decree was rendered at least since May 1971. It was then that she consulted an attorney in Fort Smith about obtaining a divorce. Apparently, he had no difficulty in ascertaining that the divorce decree had been entered in Elkhart. So far as the record discloses, appellant has never taken any steps to do anything about this decree and in reliance on it seems to have accepted an engagement ring June 1, 1971, from her present husband whom she married October 9, 1971. She then went to Cincinnati, Ohio, where appellee was living to visit the children in November 1971, and had visited them there in April 1971. She admitted that there were no problems connected with her visitation.

After the separation of the parties, the children had been turned over to appellee by appellant because, according to her, she could not support them, and he would not contribute. Appellee said that he did not contribute because he had no job, having been laid off from his employment, and because appellant was spending the money on another man instead of the children. Appellee admitted that when appellant called him to come get the children she attributed her difficulties to his failure to contribute, but also testified that appellant’s mother and father asked him to take the children. He also testified that appellant told him that she was going to turn them over to the welfare department.

Appellant’s first efforts to procure a change in the custody arrangement took place immediately after appellee’s remarriage on December 31, 1971. In February 1972, she filed an action in Juvenile Court in Cincinnati to obtain custody of the children. Either shortly before or shortly after the Juvenile Court action, she filed a suit relating to the matter in domestic court there. She testified that the first step was for visitation rights only. As a compromise of these two actions, in which their respective attorneys participated, the parties signed a stipulation dated February 16, 1972, subject to the approval of the Indiana court. It recited the agreement of the parties that the mother would have the children in Arkansas each year during the summer months and return them to their father in Ohio each fall one week prior to the commencement of school. The stipulation expressly recited that it should not be construed as changing custody of the children in the absence of further stipulation of the parties or further orders of the Indiana court, but that its purpose was to define in detail the visitation privileges granted appellant in the decree of divorce dated March 5, 1971. Mrs. Cousins testified that the stipulation was filed in Ohio in connection with her petition for custody, but that “they had to take it to Indiana to get it completed.” Appellee testified that appellant told him that she would waive custody rights if he would enter into an agreement for visitation.

We agree with the chancellor that there has been no change in circumstance since February 16, 1972, substantial enough to justify changing the custody of these two little girls, who had been with their father for nearly 2 1/2 years, beginning when the youngest was less than a year old. Appellant says that the different circumstances justifying a change are her removal from an apartment where children were permitted to visit, but not to live, to a home purchased by her and her husband in February 1972, but which was not a suitable home for the children until the first of June, because it was not completely furnished until then. She also testified that both children had dental problems when they arrived in Fort Smith which had passed unnoticed by their father and stepmother, and that the older daughter was infected with some type of poison ivy or weed rash, was wearing shoes too small for her feet and was, upon her return to Ohio in August, scheduled to have a tonsil operation which a Fort Smith pediatrician had told her was unnecessary.

We are unable to say that the welfare of these children is in jeopardy by reason of their being in the father’s custody, as they have been for such a significant period in their lives. At 26 years o£ age he had become a supervisor and detail guardsman at Castle Manufacturing Company, earning $12,000 per year. He lives in a two-bedroom, two-bath, well furnished apartment for which he pays $176 per month rent unfurnished. His sister looked after the two little girls for him during the preceding winter, but they were left with a neighboring lady babysitter for two months from 8:00 a.m. to 5:30 p.m., while appellee and his wife were at work. Melissa attended kindergarten from September 9, 1971, to April 19, 1972, and school in Springdale, Ohio, from April 19 to June 9. Appellee’s wife was employed by a business forms company at a salary of $156 per week at the time of the hearing, but planned to quit her job after the birth of her own child, expected in October 1972, in order to look after the children. She professed to love these children and to have a good relationship with them. Mrs. Smith said that she had been saving her salary for a down payment on a house, but that the fund had been used to defray the expenses of the custody litigation. Appellee’s expression of a possibility that the wife might have to return to work this year was based upon the possibility that this litigation might be prolonged. Perhaps the matter of greatest concern is the contrast in church attendance habits in these homes. The children are taken regularly by their mother, but appellee depended upon his sister to take them when she had them, and neither he nor his present wife has attended church since their marriage. It is noteworthy that appellant made no complaint about the condition of the children when she visited in Ohio, even though she now seems concerned that her former husband when testifying could not remember the name of the children’s baby-sitter. His present wife readily gave her name.

Regrettably, tooth cavities among children do occur from time to time, and the necessity of treatment of a cavity of one child on July 18, 1972, and the discovery of a cavity in a tooth of the other on August 9 are not indicative of such gross parental neglect prior to June 9 to justify serious concern about the welfare of the children in their father’s home. Although the mother said Melissa’s shoes were so small that it was necessary to replace them as soon as she arrived, the father said that he and his wife had just purchased new shoes and new summer outfits for the children. His present wife, then 21, and without previous experience in child care, except for baby-sitting, testified that she tried to get shoes of the right size for Melissa. A shoe clerk’s error should not be a factor demanding that these children be taken from their father; nor should a difference of opinion among physicians relative to a tonsillectomy and adenoidectomy. It is significant that the Fort Smith pediatrician admitted that he would not have taken issue with the Cincinnati doctor if the operation had been scheduled immediately rather than postponed to August.

Not only are we unable to say that the welfare of these children was jeopardized by leaving them in the custody of the father, we cannot say that the matters recited above constitute a significant change of circumstances. In the first place, the acquisition of the new home could not really be considered a change. An investigating social welfare caseworker testified that the Cousinses lived in the apartment until February 1972, and that their position had been basically the same during the year preceding her testimony. Jerry Cousins, appel]ant’s present husband, confirmed the fact that they had moved into the new home in February 1972, even though he said it was May or June until it was livable because they did not have such things as a refrigerator. Neither Mrs. Cousins nor her husband gave any reason for their delay in completing the furnishing of their home. At 26 years of age he has an annual income of $20,000, and is a junior officer in the Van Burén factory of a family-owned furniture business, which is the largest employer in Fort Smith. In spite of appellant’s statement that she did not know about the acquisition of the home when the settlement was negotiated, we cannot say with any assurance that the acquisition and establishment of this home was uncontemplated or could not have been made known when the stipulation was signed, or that it would not have been established and furnished sooner if the welfare of these two little girls were a cause for concern or a dominant factor.

One of the most important considerations in our review is the superior position of the chancellor, who had considerable opportunity to observe the parties and their present mates, as well as the other witnesses. There is perhaps no type of case in which the chancellor’s decision carries as much weight. Not only must we give weight to his determination of credibility, we also recognize his ability to observe and otherwise evaluate the parties, their personalities and their apparent interest and affection or lack of affection for the children. Standridge v. Standridge, 248 Ark. 392, 451 S.W. 2d 726; Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52; Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500.

We are not impressed with appellant’s arguments that we should survey changed circumstances by reference to the original divorce decree. Any such argument is foreclosed by her entering into the stipulation to terminate the Ohio litigation, which was approved by the Indiana court. We have little doubt that at least one of the Ohio actions was a custody suit. Regardless of the nature of the litigation, we cannot believe that appellant would compromise it by a surrender of these children to an unwholesome and unhealthy situation even as a temporary expedient or as a means of obtaining some advantage over appellee by . reason of the location of the ultimate forum. We might well consider that the courts of this state were not bound, either by the Indiana divorce decree or the compromise of the Ohio litigation and its resulting effect on the Indiana decree, if we could be satisfied that the return of these little girls to their father was a serious hazard to their welfare, and that there were significant factors not made known to the courts in those states. But, as herein demonstrated, we are unable to do this. We can only hope that the interest expressed by both in the welfare of these two children will be strong enough to eliminate any temptation to future recriminatory action. The evidence indicates that both these parents have matured considerably since the fracture of their marriage.

Since we cannot say that the chancellor erred as a matter of law or that his finding was against the preponderance of the evidence, his decree is affirmed.

Harris, C.J., and Brown and Holt, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. I would reverse this case for two reasons, first, because, under our cases, unless there are extraordinary reasons for not doing so, the mother is favored to have custody of small children. In the next place, and more important, I would reverse the case because I strongly feel that the welfare of the two little girls demands that they be placed with her. These children are six and three years of age and accordingly it will be a long number of years before either attains her majority. The choice on this point is simply whether the little girls will be better off with their own mother (who has shown enough interest in them to pursue them over the country), or with their father’s second wife. The father, of course, will be at his job, and they, in large measure, will be reared, under this court’s decision, by a twenty-one year old stepmother.

In Perkins v. Perkins, 226 Ark. 765, 293 S.W. 2d 889, we stated, “It is a matter of common knowledge that usually there is no love like a mother’s love; this is a law of nature that is almost invariable, and unless there are compelling reasons for giving some one other than the mother custody of a small child, it should not be done.” (my emphasis) In Wimberly v. Wimberly, 202 Ark. 461, 151 S.W. 2d 87, this court said, “There is nothing in this case from which it can definitely be said that it is to the best interest of the child for the mother to have custody of it, save and except the humanitarian rule which has most generally been adopted by the courts that during the period of tender years the child should be left in the care of the mother.” Case after case could be cited, but I know of no Arkansas case where, all things being equal, custody of small children was given to the father rather than to the mother.

Of course, the controlling consideration is the welfare of the children. Bornhoft v. Thompson, 237 Ark. 256, 372 S.W. 2d 616. In Haller v. Haller, 234 Ark. 984, 356 S.W. 2d 9, we commented that the welfare of the children is the “polestar”.

Custody is being denied the mother and being given to the father because the majority finds “that there has been no change in circumstance since February 16, 1972, substantial enough to justify changing the custody of these two little girls * * I cannot agree, and it almost seems to me that this mother is being punished for entering into the stipulation, mentioned by the majority, and it unquestionably caused both the trial court and this court to refuse the change of custody. I submit, that under the circumstances, this fact is not sufficient for refusing a custody change. To support my position in this respect, it is necessary to review a few facts appearing in the record. According to appellant, while she was married to appellee, he did not support her or the children the last year or so of marriage. Appellee admitted that he didn’t support the children following the separation and prior to the divorce, but said it was because his wife was “pouring the money on another man”. Appellant testified that subsequent to the separation appellee came to Arkansas to get the children to visit for the summer. When he did not return, she called at his place of employment in Indiana and was informed that he had left. She testified that she could not learn where he was, and went to the home of his parents in Florida to find him, but his mother slammed the door in her face and said she didn’t know where the children were. Mrs. Cousins testified that she knew nothing about the divorce in Indiana until she, herself, filed for divorce. Subsequently, her attorney advised her that she was already divorced.

In February, 1972, Mrs. Cousins filed a suit in the Juvenile Court in Ohio in an effort to obtain visitation rights. She said her lawyers told her not to ask for custody at that time because she had no home for the children, and I submit that under the circumstances (the mother in the courts of another state desperately seeking an opportunity to be with her children, and obeying the advice of her attorneys), should not be penalized for entering into the stipulation.

That the mother was not in a position at the time of the divorce to take care of the children is reflected from the testimony of appellee himself. From the record:

“Q. Now, Mr. Smith. As I understand it now, at the time the divorce was granted, your wife at that time was trying to work and support herself. You weren’t paying her any support or alimony, were you?
A. No, I wudn’t. Indiana doesn’t require you to pay alimony. She didn’t have the children so I didn’t have to pay her anything.
Q. And so the thing about it is, she had no home for the children, did she?
A. She could have made one as easy as I could have.
Q. And at the same time, she was trying to support herself. Is that right?
A. Yes.”

Townsend v. Lowery, 238 Ark. 388, 382 S.W. 2d 1, bears similarity to the case at hand, in that the father originally had custody of the children, but the court subsequently awarded custody to the mother, not because of any misconduct on the part of the father, and, in doing so, commented that during the period of tender years, it is to the best interest of the child for the mother to have it. The opinion contained, in my view, language pertinent to this cause as follows:

“In the divorce decree the Chancellor awarded appellant 'the temporary care and custody of Alicia Lynn Townsend, infant child of the parties’ and specifically retained jurisdiction for the purpose of making further orders relative to custody. * * * * After a hearing on May 14, 1962, the Chancellor granted custody of the little girl to her mother (appellee) for the summer months, permitting appellee to take her to California and requiring a $500.00 bond to guarantee the child’s return to White County by August 15, 1962. On April 26, 1963, appellee again petitioned for change of custody, praying that she be granted her daughter’s custody during the school year, giving appellant custody during the summer months. After another hearing the Chancellor on July 8, 1973, stating that ‘it now appears that it would be for the best interest of said child that said custody provisions be revised,’ granted appellee custody of the child during the school year in California and appellant custody in Arkansas during the summer.
“We have no doubt of appellant’s love for his daughter. Testimony reveals that appellant cared for her as a baby while appellee worked, before the parties separated. The Arkansas Welfare Department report indicates that at a brother’s behest, he quit a pipeline job in Michigan so that he could help his aged parents raise his daughter.’’

One thing concerning the father is rather disturbing to me. He testified that prior to the time when the children came to Arkansas to spend the summer with their mother, the children were left for two months with a lady who kept them from 8:00 A.M. until 5:30 P.M.; yet, he did not even know the name of this woman.

Some of the leading citizens of Van Burén testified on behalf of appellant and her husband, pointing out that they lived in a nice home, attended church regularly, bringing the children with them and were very attentive to the children. The children themselves, according to these witnesses, were very attractive, clean, well-dressed, appeared to be happy, and were receiving adequate care in the home. Mr. Cousins testified that he could support his wife and the children without her having to work; that he gets along fine with the little girls and would like for his wife to have custody, and that he would support them if their father refused to do so._

Let me again emphasize that these children are of tender years, and in line with our cases, should, in my opinion, be placed with their mother. I think this is particularly true where the children are little girls. In fact, as stated at the outset of this dissent, I know of no case, and none has been cited, where, all things being equal (both parents able financially, and qualified morally), children of this age have been placed with the father instead of the mother.

I, therefore, respectfully dissent.

Brown and Holt, JJ., join in this dissent.

      We find it unnecessary to pass upon the jurisdictional question raised by appellee. But see, Shaw v. Shaw, 251 Ark. 665, 473 S.W. 2d 848.

      It is difficult to harmonize appellant’s testimony in this regard. She testified that prior to the divorce Smith came to get the children just to visit him during the summer, but that he failed to return them, and when she called his place of employment in Indiana he had left. She also stated that he once returned the children to her but failed to support them, and then took them for a three-day visit but failed to return them.

       According to appellant, this stipulation was approved by the court but no hearing was had or order of approval entered.

      The only allegations with reference to immorality are contained in the testimony of the two parties concerning each other, and I do not consider that immoral acts were established by either. From the record, I would conclude that both are morally qualified to have custody.

      These included Darrell Thomas, operator of a foam rubber plant in Van Burén and his wife; Mrs. Linda Groom, a case worker for the Department of Social and Rehabilitation Services of Arkansas; Fred Patton, manager of Gordon Transports Truck Line in Fort Smith and an active leader in the First Methodist Church; Dr. John Bayliss, pastor of the First United Methodist Church in Fort Smith; Judge Milton Willis, County Judge of Crawford County for the past eight years; Dr. Jack L. Magness, pediatrician; and Mayor Allen R. Toothaker, Mayor of Van Burén for the last fifteen years.

      Appellee does not attend church but stated that his sister took the children to church when they lived at Maderia,

      Though appellee stated that his wife would quit work as soon as they returned to Cincinnati, the fact remains that she was working at the time of the hearing from 8:00 A.M. to 5:00 P.M.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Bobby James ROBERTS and Eugene CHARLES v. STATE of Arkansas
    5804
    491 S.W. 2d 390
    Opinion delivered March 12, 1973

      William C. McArthur, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Eugene Charles and Bobby James Roberts were found guilty, at a jury trial, of robbing the Gables Liquor Store at Ninth and Broadway Streets in the City of Little Rock. Charles was sentenced to three years in the state pentientiary and Roberts was sentenced to 21 years as a prior offender.

On appeal to this court they contend that the trial court erred in failing to grant motions for directed verdicts because of insufficiency of the evidence to sustain the verdicts of guilty and, they further contend that the trial court erred in allowing the state to argue on the subject of accessory and in giving an instruction concerning accessory on the court’s own motion when such instruction had not been requested by the prosecuting attorney. We find no merit in either contention.

The felony information filed by the prosecuting attorney charged the appellants Roberts and Charles, along with Austin Wilson and Benny Royce Rucker, with the crime of robbery of the Gables Liquor Store. By bill of particulars the state alleged that Rucker and Wilson entered the liquor store and robbed Claude W. Fulbright, the manager, at pistol point while Charles and Roberts remained immediately outside the building; that all four individuals fled from the scene following the robbery and all four were arrested in or about their motor vehicle in which they were attempting to escape. Rucker and Wilson were sentenced to the penitentiary on pleas of guilty.

Mr. Claude W. Fulbright testified that two men entered his liquor store and, threatening him with what appeared to be a .32 caliber automatic pistol, took his billfold from his pocket and the money from the cash register. He identified his billfold which was taken from him and the automatic pistol used in the robbery. On cross-examination he testified that one of the robbers took his billfold and the other took the money from the cash register. He testified that immediately following the robbery the police drove up as he was preparing to call them. He was unable to identify the appellants as the robbers who entered his store.

Officer Dill, a detective with the Little Rock Police Department, testified that about 10:00 p.m. on the night in question he was dressed in civilian clothes and driving an unmarked car in the vicinity of the liquor store and observed a yellow and green colored ‘53 or ‘54 model Chevrolet pull into an alley directly behind a closed business across the street from the Gables Liquor Store at Ninth and Broadway Streets. He said he observed four individuals in the automobile and that three of them got out of the car and walked slowly to the corner of Ninth and Broadway; that the defendant Charles stood beside a building across the street from the liquor store and seemed to be observing traffic traveling north and south on Broadway. He said the two other individuals walked across the street toward the liquor store and also seemed to be looking around and observing traffic. He said that at this point the appellant Roberts got out of the automobile and shouted something to the other individuals and that all three of them returned to the automobile and pushed it to get it started. He said that Roberts was driving the automobile and after it started the other three got into the automobile with the driver. He said they drove the automobile around the block and parked it again underneath some shrubbery on a vacant lot and all four individuals got out of the automobile and walked back to Ninth Street. He said he became suspicious of their actions and called on his radio for a uniform car to stand by in the area. He said he lost sight of the individuals temporarily but kept the liquor store under surveillance and soon saw all four walking in the direction of the liquor store. He said that the appellant Roberts stopped outside the liquor store and stood against the building while two others went inside. He said that Charles took a position against a building across the street from the liquor store and was observing traffic on Broadway, while Roberts seemed to be observing traffic on Ninth Street and also north on Broadway. He said that while he was observing this, the two individuals who had entered the liquor store ran from it and were joined in flight by the appellants and that they all ran in different directions. He said that after calling for assistance and waiting until another police car blocked an alley, he approached the automobile he had seen the individuals park under the shrubbery. He said that when he approached the automobile, Roberts was in the driver’s seat under the steering wheel and the appellant Charles was in the back seat. He said the other two individuals were attempting to push the automobile to get it started. He said as the other officers approached the car, Roberts ran from the driver’s side of the car and was apprehended. He said as he approached the automobile, one of the individuals was throwing money on the ground and kicking it underneath the car, and that Charles was pushing money under the back seat of the automobile. Officer Dill identified a .52 caliber pistol taken from the front seat of the vehicle drived by Roberts. He also identified 53 quarters and one nickel recovered from under the back seat of the automobile after he observed Charles putting money under the back seat. Officer Dill also identified $34 in bills and Mr. Fulbright’s wallet taken iron the right front pocket of one of the individuals.

Appellant Charles testified that he and Roberts had been shooting pool at a pool hall near the liquor store; that when they started to leave they were unable to get their automobile started. He said that while he and Roberts were working on the automobile, Rucker and Wilson approached and offered them $2 to drive Rucker and Wilson up Ninth Street. He said that while he and Roberts were still working on the car and before he could drive Wilson and Rucker up the street, the officers appeared and arrested all of them. He denied any knowledge of a robbery having been committed. He testified that when he first saw Wilson and Rucker on the evening in question, that he and Roberts and Magnolia Butler were at his house drinking beer; that Roberts and Rucker got into an argument at his house and later at the pool hall the appellant Roberts pulled a pistol on Rucker and Rucker left. He said that the next time he saw Rucker was when Rucker and Wilson came to the automobile and offered them $2 to drive up the street.

Magnolia Butler testified that she had been with the appellants during the evening in question; that she had been at Charles’ house and later on walked down to Ninth Street where she went to the Burger Bar while Charles and Roberts went to the pool hall. She said she was with Roberts and Charles at all times and they did not take any part in the robbery.

Benny Rucker testified that he and Austin Wilson robbed the liquor store and are serving sentences in the penitentiary on their pleas of guilty. He testified that Roberts and Charles knew nothing about the robbery and had no part in it. He said that after he and Wilson robbed the liquor store they saw Charles and Roberts working on the automobile in an alley and they offered Roberts $2 to take them to Wright Avenue. He said Roberts agreed to do so when he got his car fixed, so he and Wilson got into the automobile and were sitting there when the police arrived.

We are of the opinion, and so hold, that there was sufficient evidence to take the case to the jury and the trial court did not err in refusing appellants’ motions for directed verdicts. We are also of the opinion there was sufficient evidence to sustain the conviction if the jury believed the testimony of Officer Dill, which it apparently did. See McDougal v. State, 202 Ark. 936, 154 S.W. 2d 810; Ford v. State, 222 Ark. 16, 257 S.W. 2d 30; Williams v. State, 230 Ark. 574, 323 S.W. 2d 922.

As to the appellants’ second assignment, the trial court gave the state’s requested instruction No. 7 (as. amended by the court) setting out the statutory penalty for the crime of robbery. The appellants interposed a general objection to the giving of the instruction whereupon the court directed the state to make the opening portion of its closing argument. As the state made the opening portion of its closing argument, the record appears as follows:

“MR. PIERCE: Another Arkansas law, 41-118, says it just simply doesn’t make any difference whether the person —
MR. McARTHUR: (Interposing) Your Honor, at this time I am going to have to interrupt with an objection, and I would like to approach the bench, if the court please.”

At the end of a conference between attorneys and the court out of the hearing of the jury, the attorney for the appellant dictated to the reporter as follows:

“The State has failed to ask the Court for an instruction concerning accessory to a crime, and they are beginning to argue accessory. The defense objects claiming that the defendants were charged as principals, and there has been no instructions by the Court concerning accessory, therefore, it would be improper to allow the State to argue anything concerning accessory to a crime. The Court has overruled this objection, to which we save our exceptions.”

Then in the presence of the jury, the record is as follows:

“THE COURT: I have another instruction I will give you.
(Reading): ‘An accessory is one who stands by and aids and abets or assists or who, not being abiding [sic], abetting or assisting, advised and encouraged the perpetration of the crime.
All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted and punished as such.’ ”

Ark. Stat. Ann. § 41-118 (Repl. 1964) provides as follows:

“The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In any case of felony, when the evidence justifies, one indicted as principal may be convicted as an accessory after the fact; if indicted as accessory after the fact, he may be convicted as principal.”

In Bethel and Wallace v. State, 180 Ark. 290, 21 S.W. 2d 176, we said:

“It is well settled that trial courts have a wide discretion in the supervision of trials before them, including matters pertaining to opening statements, and this court will not reverse unless a manifest abuse of discretion is shown.”

See also, Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373; Petty v. State, 245 Ark. 808, 434 S.W. 2d 602.

In the case at bar that portion of the state’s argument “Another Arkansas law, 41-118, says it just simply doesn’t make any difference whether the person — ” told the jury nothing. The record does not show the remainder of the state’s argument after the objection was made by appellants’ counsel and the instruction on accessory was given. The appellants’ attorney called to the court’s attention the fact that an instruction on accessory had not been given and we are unable to find any prejudice to the appellants by the giving of the instruction.

The case of Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882, is relied on by the appellants in the case at bar for the proposition that it was necessary that the state ask for an instruction before it can be given. We do not so interpret our decision in Griffin. We simply held in that case, as well as in the cases cited in Griffin, that when the trial court gives or fails to give a particular instruction, or if a party desires that the jury be instructed on any issue not covered by any of the instructions given, it is his duty to request the instruction giving the law on it.

A trial court’s duty as to instructing a jury is set out in Ark. Stat. Ann. § 43-2134 (Repl. 1964) as follows:

“When the evidence is concluded, the court shall on motion of either party, instruct the jury on the law applicable to the case.”

The court is not required under this statute to give instructions when none are requested, Webb v. State, 154 Ark. 67, 242 S.W. 380, but certainly this statute does not preclude the trial court from giving correct and adequate instructions as to governing law, irrespective of whether he is requested to do so.

We do not agree with the appellants’ contention that the court’s giving of the accessory instruction on his own volition after the other instructions were given, had the effect attributed to it by the appellants. The appellants called the matter to the court’s attention by objection to the argument, and under the statutes and cases above cited, we are unable to find any prejudice to the appellants by the giving of the instruction. There is nothing in the record to indicate that this instruction was singled out to the exclusion of others, or that it was given any greater weight than the other instructions.

The judgment is affirmed.


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

text:
    CITY OF BLYTHEVILLE, W. J. CUPPLES, et al v. Harold THOMPSON, Sr., et al
    5-6166
    491 S.W. 2d 769
    Opinion delivered March 12, 1973
    [Rehearing denied April 16, 1973]

      Bill E. Ross and Graham Sudbury, for appellants.

      Elbert S. Johnson, for appellees.
   Conley Byrd, Justice.

This zoning case arises out of an application by Harold Thompson, Sr., his sister Mrs. Rebecca Mitchell and Kenneth Storey to rezone a 74,400 square foot plot from R-2 Residential to B-3 Commercial for the purpose of constructing a supermarket. The application was denied by both the Planning Commission and the City Council. The trial court found that the property was adjacent to an established business district and concluded that the City was arbitrary and unreasonable in denying the rezoning. The City of Blythe-ville and a number of property owners as intervenors bring this appeal.

The property involved is located between Main Street (Highway 18) on the south, Walnut Street on the North, Walker Blvd. on the east, and Holland Street on the west. The area to be rezoned is shown in the shaded area of appellant’s Exhibit “E” attached hereto as an appendix. The record shows that the downtown business district of Blytheville lies west of and adjacent to Holland Street and all that area is zoned commercial. All of the property fronting on Main Street and south of the subject property between Holland Street on the west and Walker Blvd. on the east is zoned and used as commercial property. Immediately east of Walker Blvd. on the south side of Main Street is a four family apartment building. North of Walnut Street the zoned commercial area extends east from Holland Street approximately 110 feet. Four lots east (each lot being approximately 60 feet) of the commercial area just described, appellee Mitchell owns the property north across Walnut Street from the property sought to be zoned. In the block where the subject property is located an alley between the lots fronting on Walnut and Main Streets extends from Holland to the subject property. Thompson proposes to leave a 175 ft. residential lot owned by him and occupied by his son as a buffer to the residential property to the east. All of the lots fronting on Main ánd west of the proposed supermarket center have been commercial for several years. In 1971 the city zoned a lot (104 X 140) in the southwest corner of the proposed supermarket center for commercial use.

It is undisputed that most of the residences in the area are approximately fifteen years old. It is also undisputed that Interstate 55 was opened in 1966 and that since that time Main Street (Highway No. 18) has served as the main traffic artery between the downtown business section of Blytheville and the Interstate. Since that time there has been no further residential construction on Main Street. In fact there has been some commercial development on Main Street from the Interstate interchange back toward the area in question. East beyond the Interstate lies the Blytheville Industrial Park.

E. M. Terry, a qualified Real Estate Appraiser, pointed out that the Thompson residence, containing one bedroom and a half bath upstairs and ten rooms and two baths down stairs, is a large house containing a great deal of functional obsolence, lacking in such things as central heat, central air-conditioning and a built-in kitchen. According to him the existing value of the 74,400 square feet under present zoning would be $42,700 as opposed to a value of $100,000 if the commercial use were permitted. The residential property to the west of the subject property on Walnut was described as 900 to 1,000 square feet residences ranging in value from $9,500 to $13,500. He pointed out that the commercial area on Main Street was in existence when those houses were built. Mr. Terry also pointed out that appellee Mitchell owned about 400 feet of the frontage on the north side of Walnut across from the subject site. That property contained four low cost rent houses ranging in value from $3,000 to $4,000. In addition to describing the service stations, drive-ins and bar taverns located on Main across from the block in which the subject property is located, he described the residential area to the east of Walker Blvd. as containing residences valued somewhere from $18,000 to $28,000. He pointed out that Mr. Tyrone, the owner of property at 717 Main, being east of the proposed supermarket, had an 18 X .20 ft. office on the side of his carport that he used as the business office of Acme Termite Company. He pointed out that since 1966, the daily traffic count between down town Blytheville and the Interstate had increased from 5,000 to 6,000 vehicles per day to 10,200. Because of the location of the Blytheville Industrial Park and the buildup of the commercial area around the Interstate interchange, he expressed the opinion that the daily traffic count on Main Street would continue to increase. In concluding that the highest and best use of the subject property was for commercial purposes, he stated that in his opinion the construction of the supermarket would have a minimal effect on the residences in the area. In making this conclusion he pointed to the negative influences already created and his observation of other commercial encroachments in the City of Blythe-ville.

Thomas L. Hodges, a City Planning Consultant, testified to a comprehensive Development Plan recently adopted by the City in which the subject property was designated as residential. It was his opinion that commercial development should not be allowed to occur in that area except for a buffer type use. According to him a buffer type concept provides that there should be a gradual transition so that a minimum amount of nuisance and conflict would occur. He did not consider the residence occupied by Thompson Jr., the 175 foot lot adjacent to Walker Blvd., as a buffer. According to him the rezoning would have an adverse effect from noise, lights and increase in traffic and would be the first commercial development to intrude on Walnut, east of the established business area. It was his view that the entire area on three sides of this property was composed of substantial well kept residential property which should be preserved in the comprehensive zoning plan. He also stated that if the rezoning petition is granted, the City would have to make further modifications in the traffic pattern. On cross-examination after stating that the daily traffic count on Main Street was at least .10,-000 vehicles and increasing, the following occurred:

“Q. In other words, we have a busy thoroughfare there?
A. Yes, sir.
Q. Would you say the homes in that area from Walker Blvd. along Main Street east are desirable residences for the rearing of children?
A. Yes, sir.
Q. You don’t think the heavy traffic would affect them.
A. I am sure it might have some effect but they have back yards and that is where the children normally play.
Q. I believe you said, in your opinion, the building of this grocery store would not greatly increase the traffic?
A. I didn’t say that. I said that other considerations were more important than what the increase was on Main Street and as a proportionate ratio of traffic on Main Street I would think that the increase would not be that substantial.”

Richard Reid, an Attorney and Chairman of the City Planning Commission testified that the City Planning Commission unanimously recommended that this rezoning petition be denied. It was his feeling that it would adversely affect the adjoining residential property and particularly the property on Walnut Street that would be blocked off to itself and left stranded. Having it zoned from street to street and having parking and an open area clear through, it would be a traffic flow from Walnut to Main and increase traffic problems on both streets. The other reason he felt that it should not be rezoned was that this was not an expanding commercial area. There was property in the area not too far west which was vacant and needed to be developed. There was no need to expand the commercial area. On cross-examination Mr.,. Reid stated that the property west of the subject property on both sides of Main is commercial, but it has been frequently vacant, has got vacacies there now and there is property for sale in this area. The “Tonks” are in the area. Commercial development normally moves from the downtown area if it is needed, but there is an area within the downtown area that is for sale and should be developed before any further development occurs. There was no need for expansion in this area at this time, it has a good use as a residential area, there is a substantial home on it and he did not feel that the commercial area needed to be extended.

Clarence E. Johnson, a certified public accountant, testified that there was no projection of commercial property on Walnut Street anywhere in that area and that if this rezoning is permitted the residences on Walnut, west of the subject property, would be penned in and isolated and the values thereof would decrease considerably. On cross-examination Mr. Johnson admitted that when he built his home at 713 Main, the first commercial property on the south side of Main was the Tastee Freeze (625 Main), and the next buildings were the “Tonks” and “Joint”. On the north side was the old F. L. Wicker building and the concrete building Mr. Abbott owns. Going back west was the Jack Robinson’s Gin and then Gilbert’s Upholstery. The Gulf Station east of the Tastee Freeze and the Mini Mart have been built since he built his home in 1956.

Denny Wilson, a member of the City Council, testified that a supermarket of the caliber that the Storey Brothers have built in the city already would be a nuisance to that area. Furthermore it would create a traffic problem and would cause a devaluation of the property in the area. After pointing out that he was alderman for the ward where the property is located, he was asked if he saw any problems with the location of a big supermarket on the subject property. Mr. Wilson answered as follows:

“A. Yes, particularly to the traffic situation, due to the new extension of the one-way streets. Yes, sir, I do, there is a number of things I base that on because Highway 18 will eventually be divided in this area and one-way traffic is going to be going to Walnut Street, one-way traffic going west and one-way traffic on Ash would be entering into State Highway 18 on the eastern flow, this already is a problem here for entering because of the heavy traffic and because of this man running a used car lot, Mr. Gilbert on this corner, we have had a lot of complaints about that—
Q. Is that also in an R-2 Zone?
A. Yes, Sir.
Q —Then in the winter time especially, this part of the highway is hard to get into because of the steep incline and if there is a little ice or something on there it also creates a great problem. Eventually, if this building is built here as has been proposed, this would throw, all the western traffic and make North Walker Blvd. an expressway between Main Street and Walnut Street to handle the large trucks that will be setting out here about 27 feet in the the street, according to the proposal of building to be erected here. Generally those trucks, those trailer trucks are about 40 feet long, with a 15 foot dock so that will put 27 out in the street. We already have a problem on Walnut Street because of people coming in off of interstate, Main Street can’t carry it so they turn on Walnut one block and then come through to town the best way they can. We have a moving and storage business over there that also parks trucks out in front for loading ánd unloading. It is an established business but it creates complaints and problems which we voice to them to try to get that cleared up, so all in all the whole picture all the way around causes traffic problems and it looks to me this new business would create a problem.”

Thereafter the following occurred: .

“THE COURT: I wasn’t quite clear, this witness mentioned something about they planned to create one-way streets. I didn’t quite follow that. Is Main Street going to be created into a one-way affair there?
WITNESS: No, sir, it will come in at the corner of Laclede, Ash will come into Main at the corner of Laclede which is about, oh, I guess, about 150 or 200 feet from the property we are talking about.
THE COURT: What about Walnut, is it going to be created into a one-way street?
WITNESS: Yes, sir, beginning at Laclede.
THE COURT: In other words, it won’t come east to where this property is?
WITNESS: The starting of the one-way part that you are talking about?
THE COURT: Yes, sir.
WITNESS: No, sir, it will not.”

Bob McHaney, a member of the City Council, testified that the homes in the 700 block on East Main were well kept — he would call them prestige homes. He, while recognizing the increase in traffic on Main Street, opposed the rezoning because it would be the first commercial development beyond Holland Street on Walnut and because it would increase the traffic flow and traffic problem. On cross-examination, he testified as follows:

“Q. Mr. McHaney, are you aware of the fact there is an established business district starting from this property all the way back to down town?
A. On Main Street, yes.
Q. To rezone all this property would be simply extending the present B-3 zone?
A. Yes, sir.
Q. Do you have any objections to grocery stores or supermarkets?
A. No I have no objection to grocery stores, I eat out of them, they furnish my food.”

We have consistently recognized that zoning ordinances are valid as against constitutional objection, only by reason of the police power, City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370 (1964), and that such ordinances must bear some definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city, City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S.W. 2d 583 (1939).

In a number of cases, we have recognized that a residential restriction is arbitrary and unreasonable where traffic conditions have substantially reduced the residential value of property in an area. See City of Little Rock v. Andres, supra, and City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W. 2d 923 (1965).

In the Sun Building & Developing Co. case, supra, it was pointed out that a refusal to rezone property because other available property is already zoned for such purposes can create a monopoly contrary to Art. 2 § 19 of the Arkansas Consi tution.

Finally in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), in dealing with the refusal of a city to rezone property adjacent to an existing business district, we said:

“...There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property. It is the contention of the protestants that residence property adjacent to a business district becomes, on that account, less desirable for residence use. Conceding this to be true, and it is undoubtedly true, in a sense, that property thus located is not as desireable as residence property, it demonstrates the right of owners of borderline property between residence and business district to use their property for either purpose. In other words, if it has become less desirable for residence property because of its proximity to the business district, they have the legal right, without interference, to use it for business purposes. ...”

In the case at bar there is no doubt that the property in question is adjacent to existing business property and the trial court correctly held that the refusal to rezone was arbitrary.

Affirmed.

Harris, C.J., and Fogleman, and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. In evaluating the question whether the chancellor’s determination that the city council acted arbitrarily, we must start with the presumption that the city council did not abuse its discretion, but that it has acted with reason and in good faith for the benefit of the public. Following any other course produces an unthinkable and intolerable result— the substitution of the judgment and discretion of the courts for the collective judgment and discretion of the city council, the body in which the lawmaking branch of our government has seen fit to lodge the zoning power. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74; Little Rock Ry. & Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, Ann. Cas. 1913D 1086.

The consideration given to this matter by the city authorities is itself indicative that they acted deliberately and reasonably, rather than arbitrarily or capriciously. First, the Blytheville City Planning Commission unanimously disapproved the rezoning and recommended that the application be rejected. Secondly, the city council rejected the application, both on original consideration and on reconsideration, by a vote of seven to three.

The commission did not reach its conclusion summarily. It heard arguments pro and con at a public hearing in December 1971, at which appellees’ attorney was present, after considering the matter in November. It had in 1970 granted a rezoning of a part of the property involved on the petition of appellee Thompson. The rezoned property fronted only on Main Street and on other commercial property, and the property for which rezoning is now sought appeared to constitute a buffer on two sides between commercial and residential areas. The commission had the services and advice of the city’s planning and land development consultant, Mr. Thomas L. Hodges of the Urban Planning and Development Corporation, who had served the city since 1967 and whose qualifications are such as to give weight to his opinions, and to cause appellees’ attorney to remark that he was impressed with them. A new code had been developed with the assistance of this consultant, after numerous meetings of the planning commission and considerable thought and planning, and adopted by the city council on August 10, 1971.

The opinion of this expert supported the action of the planning commission and that of the city council. This expert had studied the proper zoning of this property when the earlier rezoning petition was granted, when the comprehensive development plan was prepared and when the pending request was made. The chairman of the planning commission was a Blytheville lawyer who had spent his entire life in that city and who had been familiar with the property all that time. He had been a member of the commission for eight years and its chairman for four. He had participated in two comprehensive planning studies of the city, one in 1964 and the other in 1971. He said that the commission did not always follow the recommendations of their professional adviser in zoning matters. He testified that before the hearing the members of the commission considered the matter for a month and went out and viewed the property involved. Chairman Reid was influenced in his action by the feeling that adjoining residential property, particularly on Walnut Street, would be isolated; that the supermarket parking area would provide a traffic flow between Walnut and Main and increase traffic on both streets and that the supermarket would draw traffic on Walker Avenue into an intersection with Main Street and cause a traffic regulation problem; that the subject property was not in an expanding commercial area; and that there was no need for expansion of the commercial area.

Clarence E. Johnson, a member of the planning commission for seven years, was motivated by similar considerations and by the conclusion that traffic problems would result from the backing of trucks into the proposed supermarket loading dock, and that noise from unloading at night and early morning would be offensive.

The city council heard the matter at its December 1971 meeting and reconsidered it in January 1972. Proponents of the rezoning were heard. One of the members of the council, who lived in the general area and was an alderman from the ward in which it was located, had observed the property while driving past it five or six times daily. In voting against the rezoning, he considered the lack of commercial development west of the property, the probability that the store would be open all night and on Sundays, the traffic problem from the T intersection of Walker and East Main, the ingress and egress of vehicular traffic at points other than established intersections, and the probability that North Walker Street would be partially blocked at times by trucks serving the supermarket. At least one of the councilmen who voted against the application viewed the property twice between meetings, once in the company of the applicants’ attorney. This alderman considered that, if rezoning were permitted, the property would be the site of the first commercial development on Walnut Street east of Holland.

These actions are certainly not indicative of any unreasoned exercise of judgment. Even one of the council members who voted for the application testified when called as a witness by appellees that he exercised his best judgment in the vote, and that the other aldermen did too. He said that he did not think the other aldermen acted arbitrarily.

If there was substantial evidence to support the action of the Blytheville City Council, it did not act arbitrarily or capriciously, as that term has been defined in our zoning cases. To act arbitrarily means to act in a manner decisive but unreasoned, or arising from an unrestrained exercise of the will, caprice or personal preference, based on random or convenient selection or choice, rather than on reason or nature. Capricious means “not guided by steady judgment or purpose.” City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921; City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751. In effect, the application of the appropriate restraint on judicial action in these cases requires that the courts refuse to act unless no reasonable mind could reach the conclusion reached by the city council. See City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697. While it might seem to us in a review remote in time and distance from the property involved that a preponderance of the evidence supported the rezoning of the property, it is not the function of the courts to weigh the evidence. When they do, chancellors become one-man zoning boards and this court constitutes itself as a super-zoning board with statewide jurisdiction. I feel that the distinguished chancellor fell into error by weighing the evidence in this case and that the majority of this court has followed him down this wrong trail.

A review of the testimony reveals evidence tending to show that: the subject property is virtually surrounded by substantial residential property in an old established residential area, with the exception of property west of it on Main Street which is zoned commercial and which abuts the smaller tract earlier rezoned at the instance of the appellee Thompson; the value of the residences would be impaired; west of Walker on Main toward the central business district of Blytheville there are several businesses no longer in operation, several buildings are vacant, many are in need of rehabilitation, and there has been no new commercial development in this area since 1963 or 1964; the only significant commercial development east of the property is at least one-half mile away as one approaches Interstate Highway 55; the last official traffic count on East Main was 10,200 vehicles per day and traffic is increasing; traffic in the area will be increased substantially by the operation of a supermarket on the property, and considerable new traffic drawn from southeast Blytheville for which Walker Boulevard furnishes the principal artery; the increase in traffic would present problems of regulation and make ingress and egress to and from the residences more difficult and hazardous, and the intersection at South Walker and Main, a T-type intersection, would be considerably complicated to the extent that the city would have to take measures to insure traffic safety and to modify the resulting traffic plan; the maneuvering and parking of large trailer trucks at the store’s loading docks would impede traffic and sometimes partially obstruct the street; noise would be generated by traffic, opening and closing of automobile doors and by the large trailer trucks, which normally would make deliveries at the store in the early morning hours, and would be anticipated to experience difficulty in maneuvering into the loading docks; the noise factor would be intensified by echoes from a paved parking lot and by reason of the fact that truck motors are not turned off while unloading; it is advantageous to have substantial exterior lighting in a supermarket parking area; the supermarket would probably be open until 9:00 or 10:00 p.m. or later and on Sundays; substantial trash problems would develop in the area; there would be a health problem if garbage cans existed; vermin control is a problem around a supermarket; the property is not in an R-2 Zone as is all the surrounding residential property, but would be in a B-S Zone (Highway Commercial); it is undesirable to have an R-2 Zone facing a B-3 business; the residences west of the property on Walnut would be "boxed” in between the supermarket and a freight terminal at Holland and Walnut; the comprehensive city plan contemplated the preservation of the residential area; the adjacent commercial area is not expanding, but is deteriorating; there is no need for expansion of the commercial area.

Even though the best and most renumerative use of appellees’ property would require the rezoning, those persons residing in the residential area who have relied upon residential zoning have rights at stake and are entitled to consideration, and the use of appellees’ property may be restrained so as not to cause them injury. Benefit to a few individuals cannot be permitted to override the best interests of the residents of the overall area, and the line must be drawn at some point. Mere economic gain to the owner of a comparatively small area is not sufficient cause for rezoning. Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94; Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210; Tate v. City of Malvern, 246 Ark. 316, 438 S.W. 2d 52.

Appellees’ own real estate expert admitted (just as the city planning consultant testified) that the area was not an expanding commercial area and had not been for the past ten years, and that the Thompson house would not be much of a buffer for the residential area on the east. One of the aldermen who voted for the application said that it was undesirable to have a business in a B-3 Zone across the street from an R-2 Zone. Mr. Thompson, Sr., admitted that some of the residential property would be "boxed in” by the rezoning.

I do not see how the city action can be called either arbitrary or capricious, even under the extreme standards of the amazingly renascent Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883, particularly in view of the admission of appellees’ own expert. For this reason, I respectfully dissent.

I am authorized to state that the Chief Justice and Mr. Justice Jones join in this dissent.

      Cf. Ark. Stat. Ann. § 19-2825, et seq. (Repl. 1968); City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921. See also, Gitelman, Judicial Review of Zoning, 23 Ark. L. Rev. 22.


author: Conley Byrd, Justice.

text:
    Billy A. PUTERBAUGH v. Fern PUTERBAUGH
    5-6213
    491 S.W. 2d 386
    Opinion delivered March 12, 1973

      Smith, Williams, Friday, Eldridge ir Clark, by: Frederick S. Ussery, Ronnie A. Phillips and L. Weens Trussell, for appellant.

      Jack L. Lessenberry, for appellee.
   Conley Byrd, Justice.

Appellant Billy A. Puterbaugh contends that an order for temporary support, maintenance and attorney’s fees for his wife, appellee Fern Puterbaugh, should have been dismissed because his wife was not a resident of Pulaski County at the time she filed her complaint on August 16, 1972.

Ark. Stat. Ann. § 34-1204 (Repl. 1962), provides that divorce proceedings shall be in the county where the complainant resides.

This record comes to us only upon the testimony of appellee to the éffect that she intends to reside and be a resident of Pulaski County. Appellant relies upon McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W. 2d 571 (1936), to support his position that the Pulaski Chancery Court had no jurisdiction. Here, however, the proof on the part of appellee shows that she lived and worked as a legal secretary in Little Rock from 1962 to 1967, shortly before her marriage in February 1968. Also that she was without funds with which to support herself at the time of separation and that she came to Little Rock to seek employment. In the McLaughlin case, the proof was to the effect that the wife moved to Little Rock for the sole purpose of filing for a divorce.

From a review of the record upon appellee’s testimony alone, we cannot say that the chancellor’s ruling is contrary to a preponderance of the evidence.

Affirmed.

George Rose Smith, J., concur.

Harris, C. J. and Holt, J., not participating.


text:
    Naomi ROLFE et al v. John FRENCH et al
    5-6219
    491 S.W. 2d 383
    Opinion delivered March 12, 1973

      Brockman, Brockman ir Gunti, for appellants.

      John C. Finley Jr., for appellees.
   Conley Byrd, Justice.

Appellants Naomi Rolfe, Casanna Rolfe, M. C. Rolfe, Verna Rolfe, Odessa Rolfe, Armit Rolfe, James Rolfe, Virginia Rolfe and Ida Mae Rolfe, children of R. M. Rolfe, deceased, instituted this action against John French, Ed Bass and Paul Roberts to quiet title to thirty acres of wild and unimproved land described as “part of the Northwest Quarter (NWM) of the Southeast Quarter (SEM) of Section 30, Township 12 South, Range 31 West.” Appellants at that time based their claim of adverse possession upon a payment of taxes for more than seven years under color of title.

Appellees, Piney Grove Cemetery by its trustees Cartrell L. Roberts, Andrew Watson and John French answered denying that R. M. Rolfe ever acquired color of title to the property. In the affirmative it was alleged that Piney Grove Cemetery acquired title to the property in 1917 by a deed from H. G. Sanderson and wife to Robert McClelan and L. T. Rolfe, Trustees for the Piney Grove Cemetery. The answer also alleged that the tax sale resulting in the Redemption Deed acquired by Mr. R. M. Rolfe in 1932 was illegal and void for several reasons and that the Redemption Deed was for the use and benefit of Piney Grove Cemetery. The answer concluded as follows:

“Wherefore, Defendant, prays that the Tax Sale, and Redemption, aforementioned, in favor of R. M. Rolfe, be cancelled, set aside, declared void, of no effect, and the Complaint of the Plantiff’s be dismissed; that in event the court find that any taxes, penalties, costs, interest, and other expenses be due the Plaintiff or the proper parties, that they be permitted to pay the same into this court, and that the said lands be quieted and confirmed in the Defendant, Piney Grove Cemetery, as against the Plaintiffs, and all other just and proper relief to which the Defendant, Piney Grove Cemetery is entitled.”

After appellants had presented their case, they requested and were granted a nonsuit. Appellees then continued with the presentation of their evidence over the objections of appellants. At the conclusion of the case the trial court appointed appellees, John French, Cartrell Roberts and Andrew Watson as trustees in succession and quieted the title to the whole forty acre tract in appellees as trustees for Piney Grove Cemetery. After making the appointment and the announcement that he was quieting the title in appellees, the court inquired if there was “anything else to be brought to the attention of the court?” Appellants at that time only stated that they “would like to save [their] exceptions. . . .” For reversal appellants contend: that the title of R. M. Rolfe and his heirs to the thirty acres should not have been canceled; that the action taken and relief awarded are not responsive to the pleadings; that the chancellor erred in permitting appellees to proceed after the granting of the nonsuit; and that the chancellor should have required appellees to repay taxes paid by R. M. Rolfe.

The record shows that the entire forty acre tract was assessed for the years 1918 to 1922 in the name of R. M. Rolfe, trustee. In 1923 the tract was assessed in the name of R. M. Rolfe. In 1924 the lands were assessed in R. M. Rolfe trustee. In 1925, the lands were put on the assessment records to show “pt NW SE Section 30-12-31” containing 30 acres in the name of R. M. Rolfe and the “NW SE 10 acres” was exempted as being the Piney Grove Cemetery. In 1929 the thirty acre tract was sold to the State for delinquent taxes. In 1932 R. M. Rolfe acquired a redemption deed from the State Land Commissioner. From that time until his death in 1951 the taxes on the thirty acres were paid in the name of R. M. Rolfe. Appellants paid the taxes from 1952 until 1963, when appellees paid the taxes and caused the assessment rolls to show the whole forty acre tract as exempt from taxation.

Appellants readily admitted that R. M. Rolfe was a trustee for the Saint John Baptist Church and that he acted as trustee for the Piney Grove Cemetery until his death in 1951. Several witnesses, all members of the R. M. Rolfe family stated that R. M. Rolfe always claimed the thirty acre tract as his own land. In describing it they placed the cemetery ten acres on one side of a road, described as the west 10 acres, and the thirty acres on the other side thereof.

For the appellees, it was shown by witnesses, in their seventies and eighties, that the property was acquired in 1917, for the use and benefit of three churches in the area for burial grounds. It was established that the land had never been fenced and that no one had ever been charged for a burial lot — i.e., burial is not restricted to a membership in the churches. None of the witnesses had ever heard of R. M. Rolfe claiming to own the lands. Some of them mentioned that collections were made at the church from time to time for the purpose of paying the taxes and expenses in connection with the cemetery. One witness recalled that R. M. Rolfe at one time got permission to cut the timber from the thirty acre tract.

It is undisputed that L. T. Rolfe, one of the named trustees in the deed lived, and apparently continued to act as trustee of the cemetery, until 1959.

In 1963, the three churches got together and selected John French, Cartrell L. Roberts and Andrew Watson to serve as trustees in succession for the cemetery; Admittedly each of the churches as well as Piney Grove Cemetery is an unincorporated association.

Appellants do not show that they are either members of the Piney Grove Cemetery Association or any of the churches involved. Therefore, we do not see how they are in a position to complain of the chancellor’s action in appointing trustees.

In the trial appellants did not ask to be reimbursed for the taxes paid by them even though the trial court made inquiry as to whether there was anything else to be brought to his attention. Therefore, it appears to us that they have raised this issue for the first time on appeal and for that reason we find no merit in the contention now made.

Like the trial court, we construe appellees’ pleading as asking for affirmative relief and consequently find the contention that the trial court erred in permitting appellees to proceed after appellants’ nonsuit to be without merit.

In arguing that the trial court erred in cancelling R. M. Rolfe’s title to the thirty acres, appellants contend that not only did they have color of title but that they had paid taxes on wild and unimproved land for more than 15 years and that under Ark. Stat. Ann. § 37-103 (Repl. 1962), they had the lands by adverse possession. We find no merit in these contentions because R. M. Rolfe went into possession of the lands as a trustee. In Trusts and Trustees 2d ed., by Bogert § 951, it is pointed out that there can be no adverse holding by a trustee until he denudes himself of his trust and notifies the beneficiary of his treachery. See also, Boehnke v. Roenfanz, 246 Iowa 240, 67 NW 2d 585, 54 A.L.R. 2d 1, (1954), where the rule is stated:

“It is elementary that as between the trustee and cestui que trust of an express trust, statutes of limitations have no application. Possession by the trustee of trust property is, in law, possession of the cestui que trust. As against an express and continuing trust, time does not run until repudiation or adverse possession by the trustee and knowledge or notice thereof to the cestui.
“. . . The only way in which the trustee of an express or voluntary trust can set the statute of limitations in operation in his favor with respect to it or its properties in his hands is by a distinct act of repudiation amounting to a denial of its existence, and no mere tacit failure of the trustee to perform his duty in respect to such trust could or should be held to amount to a repudiation of it so as to set the statute of limitations in motion in his favor and as a result of his own neglect of duty.”

Since R. M. Rolfe continued to act as trustee for the cemetery, the redemption deed and the payment of the taxes in his individual name, cannot be accepted as a repudiation of his trust. Appellants’ testimony to the effect that he claimed to them to own the thirty acres is not only self serving but is disputed by the witnesses for appellees. Thus in the absence of a showing of a repudiation of the trust, appellants are not in a position to claim adverse possession, through the payment of taxes by R. M. Rolfe. Of course, appellant’s payment of taxes after R. M. Rolfe’s death did not extend for the statutory period.

Affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. TURK’S AUTO CORPORATION, INC
    5-6193
    491 S.W. 2d 387
    Opinion delivered March 12, 1972

      Thomas B. Keys and Billy Pease, for appellant.

      Ralph C. Murray, for appellee.
   Frank Holt, Justice.

The appellant, by a petition for mandatory injunction, sought to require the appellee, at its own expense, to screen its junkyard or remove it 1000' from the adjacent highway right-of-way. The appellee responded by asserting Ark. Stat. Ann. § 76-2513 et seq. (1971 Supp.) (Act 640 of 1967), which gives the appellant the asserted authority, is illegal, unconstitutional and void in that it purports to authorize the appellant to take appellee’s property without due process of law and adequate compensation. The chancellor held the statute unconstitutional as applied to the appellee because it is in violation of our constitution which prohibits the taking of private property for public use without just compensation. For reversal the appellant contends “[Tjhat the trial court erred in holding Act 640 of 1967 unconstitutional as applied to the appellee, *** and by denying and dismissing the appellant’s petition for a mandatory injunction pursuant to the aforesaid act.” We agree with the chancellor.

In 1955 our legislature enacted Act 212 (Ark. Stat. Ann. § 76-129 et seq.) to regulate the existence of junkyards. That Act provided for a $100 per day penalty whenever a person keeps or maintains ”***[A]ny place where five (5) or more junk, wrecked or non-operative automobiles or other vehicles are deposited, parked, placed, or otherwise located***” within one-half mile of any paved highway of this state.

In Bachman v. State, 235 Ark. 339, 359 S.W. 2d 815 (1962), we construed the Act unconstitutional because it was arbitrary and unreasonable. In doing so, however, we quoted as follows from W. C. Farley, etc., v. Patrick C. Graney, State Road Commissioner, etc., W. Va., 119 S. E. 2d 833:

“***It can not be gainsaid that at this time the great weight of authority is to the effect that esthetic considerations alone will not justify the exercise of legislative authority under the police power. But on the other hand, it is perhaps just as well established that esthetic considerations may be given due weight in connecdon with other factors which support legislative exercise of the police power. It is clear also that there is in this day a marked tendency to accord greater importance to esthetic considerations.’”

Then we said:

“In this modern age when our highway system is being expanded and improved, and when more attention is being given to their beautification for the attraction of tourists, we deem it wise not to close the door on the aforementioned tendency to broaden the scope of the State’s police power.”

Five years later the legislature enacted our present Act 640 of 1967 (§ 76-2513 et seq.), which provides that the operation of a junkyard is a public nuisance whenever it is located within 1000' of the nearest edge of the right-of-way of any Interstate, Primary, or other State Highway designated by appellant, unless it is screened from the view of the traveling public or removed a distance of more than 1000' from the nearest right-of-way line. The Act authorizes the appellant “to promulgate rules and regulations governing the location, planting, construction, and maintenance, including materials used therein, of the screening and fencing required under this Act.” As indicated, this litigation resulted when the appellee refused to comply with appellant’s requirement that appellee screen or remove, at its own expense, its junkyard from public view.

It appears that for approximately twenty years this type of operation was conducted at the present location. The appellee has owned and operated this business since October 1, 1965, or before the enactment of the present legislation. The business fronted upon an existing highway within the city limits of West Helena, Arkansas. In 1966 or a year before the present Act, appellant, at its expense, constructed and completely screened the 500' frontage of appellee’s salvage operation adjacent to the then existing highway so that the salvage yard was invisible to the traveling public. This screen was approximately 10' in height. About two years later the Helena Loop or bypass was constructed adjacent to another portion of appellee’s property. This resulted in another public exposure of the existing junkyard. The appellant erected a transparent type chain link fence approximately 6' in height along the 611' frontage of this bypass. Subsequently, the appellant, pursuant to the rules and regulations as authorized by the provisions of Act 640 of 1967, demanded that appellee effectively screen the renewed exposure of its operation from the view of the traveling public. According to the appellee, its business investment totaled $100,000 and it would require an expenditure by it of approximately $7,000 to comply with the type of screen that the appellant had constructed at its own expense a few years previously on the other side of appellee’s property. Appellee had insufficient space to “move back 1000 feet.”

The narrow issue posed is whether the imposition of this expense upon the appellee is a taking or exaction of his property rights without just compensation and due process of law.

It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.”

It was aptly said in Ark. State Highway Commn. v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):

‘“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’”

In the case at bar, as appellant asserts, the police power of the state has long existed to validly impose regulations pertaining to property usages. However, it does not follow that such power can be exercised in an absolute and arbitrary manner. Tn City of Little Rock v. Hocott, 220 Ark. 421, 247 S.W. 2d 1012, (1952), a zoning case, we said:

“Thus we have a conflict in the evidence as to whether the area in question is susceptible of use or development for one-family residences, as restricted by the ordinance, and also whether the development and use contemplated by appellees would adversely affect the value and use of other residential property in the neighborhood. If both questions are answered in the negative, then the action of the council in rejecting the petition of appellees is unreasonable and arbitrary, as applied to the area in question, in that it constitutes an unlawful deprivation of the use of the property by appellees.”

Also, the rule of law is well established that when a property owner suffers damages special in nature to himself and not suffered by the public in general, the property owner is entitled to just compensation. Wenderoth v. Baker, 288 Ark. 464, 382 S.W. 2d 578 (1964), Ark. State Hwy. Commn. v. McNeill, 238 Ark. 244, 381 S.W. 2d 425 (1964).

In the case at bar, we do not construe Bachman v. State, supra, as being broad enough to permit the enactment and enforcement of legislation which would require the appellee, whose business was in lawful existence at the time of the passage of this Act, to be burdened with the expense of screening his property upon the relocation of the highway. The Act actually recognizes that just compensation “shall be paid” to the owner of a junkyard in certain circumstances. It provides “that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal” of junkyards lawfully in existence. Appellee’s junkyard was lawfully in existence when the Act was enacted. Since the Act provides that, in the above enumerated instances, the owner “shall” be justly compensated, it is difficult to perceive why appellee should be required to screen his lawful business from public view without just compensation. We agree with the chancellor that the imposition of the cost of the screening upon appellee would be a deprivation of his vested property rights without just compensation and, therefore, is unconstitutional as applied to him.

Affirmed.

Brown, J., not participating.


text:
    James Earl YOUNG v. STATE of Arkansas
    5816
    491 S.W. 2d 789
    Opinion delivered March 12, 1973
    [Rehearing denied April 16, 1973]

      Howell L. Hall, Public Defender for appellant.

      Jim Guy Tucker, Atty. Gen. Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of possessing stolen property and, pursuant to our habitual criminal act, imposed a 31 year penitentiary sentence. The trial court accordingly entered judgment and directed that his sentence be served upon the expiration of his incarceration in the federal penitentiary. The appellant, through the public defender as appellate counsel, first contends for reversal that the court erred in refusing to dismiss the charges against him since he was not brought to trial within 180 days after his written request for a speedy trial as provided for in Ark. Stat. Ann. § 43-2301, et seq. (1971 Supp.).

On October 4, 1971, appellant, when he was in custody of the sheriff of Fulton County, Atlanta, Georgia, with Arkansas detainers filed against him on “two crimes of possession of stolen property,” forwarded a pro se petition for a speedy trial. His pro se request was subscribed by a case worker and mailed to the local prosecuting attorney. Appellant was brought to trial approximately two months after the expiration of 180 days from the date of the written request.

Our Interstate Agreement on Detainers provides that whenever a request is made in the prescribed manner and form by an inmate of a state or federal institution, he must be brought to trial within 180 days if the state or federal agency is a party to our interstate compact. From the record before us it clearly appears that appellant’s request was not in proper form as required by the statute. However, we deem it unnecessary to discuss these deficiencies inasmuch as the State of Georgia was not a party to our interstate agreement at the time of appellant’s request. That state did not become a party until April 3, 1972, at which time Chapter 77-5B (Code of Ga. Ann. [1972 Supp.]) was enacted and entitled “Interstate Agreement on Detainers.’Appellant was brought to trial in our state approximately two months after-wards. Therefore, appellant cannot validly assert there was a violation of his statutory rights.

Neither can we agree with appellant’s assertion that the trial court erred in allowing evidence to be introduced against him as a result of a search of his home at a time when “he was illegally arrested without probable cause and detained.” A local business office was burglarized and among the articles taken from a safe was 21 S&H green stamp books totaling approximately 17,000 stamps. The local stamp redemption center was alerted. As a result an employee recognized the serial numbers on the stolen stamps when they were presented for redemption by appellant’s wife with appellant accompanying her. The employee transmitted their car license number and description of the vehicle appellant was driving to the police along with the address given in the transaction by appellant’s wife and her correct name which she signed on a “sales slip.” From that information the police were able to locate the residence of appellant and his wife.

The investigating officers appeared at appellant’s house and informed him and his wife it would be necessary for them to go to the police department for investigation. The officers were asked to come in the house during which time appellant dressed. Inside the house one of them observed some green stamps in plain view. Appellant and his wife refused permission to search their house in the absence of a warrant. After they were taken into custody and transferred to police headquarters, the officers secured a search warrant and found the allegedly stolen articles in their house.

We have said probable cause exists when there is information that establishes more than a mere suspicion and such information need not be tantamount to the quantum of proof necessary to support a conviction. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970). There we said “[S]imply stated, probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused commiteed a felony.” Also, see Scott v. State, 249 Ark. 967, 463 S.W.2d 404 (1971), Ark. Stat. Ann. § 43-403 (1964 Repl.) Only unreasonable searches and seizures are prohibited by the Fourth Amendment, United States Constitution and Art. 2, § 15, Ark. Constitution.

In the case at bar we are of the view that the recited circumstances constituted probable cause for the arrest of the appellant and the issuance of the search warrant even if the green stamps were not observed by the officers when first in appellant’s house by permission.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Robert VAULT v. Richard B. ADKISSON, Judge of Fourth Division Pulaski Circuit Court
    CR 73-5
    491 S.W. 2d 609
    Opinion delivered March 19, 1973

      James R. Howard, for petitioner.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for respondent.
   Carleton Harris, Chief Justice.

Petitioner, Robert Vault, was jointly charged with two other co-defendants with the crime of Murder in the First Degree. On November 6, 1972, Vault moved for a severance under the provisions of Ark. Stat. Ann. § 43-1802 (Repl. 1964), such motion being denied by the court. Thereafter, Vault filed petition with this court seeking a Writ of Mandamus, his contention being that the severance provided for in the aforementioned statute is mandatory and the court has no discretion in the matter. The pertinent parts of the section at issue read as follows:

“When two (2) or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court.”

The filing of this petition is, of course, occasioned by the United States Supreme Court ruling in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346 (1972), in which the court decided that where a jury is permitted to decide between the punishments of life and death, the death penalty constitutes cruel and unusual punishment and the court held this interpretation applicable to the States through the Fourteenth Amendment. We recognized this holding in Graham v. State, 253 Ark. November 20, 1972, 486 S.W. 2d 678. Petitioner argues that since “capital offenses” no longer exist, the most severe penalty provided is life imprisonment, and we should construe the statute to hold that one is entitled to a severance when he is subject to the most severe penalty known to the law. To hold otherwise, says petitioner, would be to emasculate the section, which would be contrary to our long-established rules of statutory construction. It is true that we have said that where practicable, statutes will be construed so that every provision contained therein may be operative, but we do not agree that such a construction in the petition before us would be practicable. Actually, we are being asked to change the wording “for a capital offense” to “for an offense punishable by life imprisonment”, and such holding would constitute judicial legislation.

Petitioner cites statutes from some other States which provide for a severance where two or more defendants are jointly indicted for any felony, but such citations are of no help here, for all are legislative enactments. To the contrary, Ark. Stat. Ann. § 43-1802 is the only Arkansas statute which had made mandatory the granting of a severance. A capital crime or offense, according to Volume I, Bouvier’s Law Dictionary (Third Revision) is “One for which the punishment of death is inflicted”. In fact, we are not familiar with any definition of capital offense contrary to that definition. As long ago as 1850, this court stated that it is only where terms used in a statute are ambiguous that construction is permissible, and that where there is no ambiguity, there is no room for construction. Wilson v. Biscoe, et al, 11 Ark. 44. In Berry v. Sale, 184 Ark. 655, 43 S.W. 2d 225, Chief Justice Hart, speaking for the court, pointed out that where the intention of the Legislature is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed, and in the 1965 case of Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881, this court stated:

“The meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning.” [Emphasis supplied]

The question is not what constitutes “better procedure”, but simply a matter of what the statute provides and we hold that it very clearly provides a severance as a matter of right only in cases where the accused upon conviction is subject to the imposition of the death penalty.

Writ denied.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur. We have uniformly held that whether or not an offense is capital depends upon the penalty imposed, and not upon the gravity of the offense. Walker v. State, 137 Ark. 402, 209 S.W. 86, 3 A.L.R. 968; Outler v. State, 154 Ark. 598, 243 S.W. 851; Allison v. State, 204 Ark. 609, 164 S.W. 2d 442. Furthermore, we held that the former rule, that only an objection to rulings of the trial was necessary as a prerequisite to appellate review where appellant was convicted of a capital offense, had no application when one charged with murder in the first degree was sentenced to life imprisonment. Surridge v. State, 239 Ark. 581, 393 S.W. 2d 246. If an offense is not capital when life imprisonment, rather than the death penalty, has been imposed, it is only logical that it is not a capital offense when the death penalty cannot be imposed under any circumstances.

We have heretofore granted a writ of certiorari and directed that a circuit court admit one charged with first degree rape to bail, overruling the trial court’s holding that the crime was not a bailable offense. We then relied upon Walker v. State, supra, and viewed the matter in the light of Graham v. State, 253 Ark. 462, 486 S.W. 2d 678. We also referred to State v. Johnson, 61 N.J. 351, 294 A. 2d 245. See Jerry Wayne Baumgardner v. Ed Hall, Sheriff, 253 Ark. 723.

It would certainly be inconsistent to say that the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), made former capital offenses bailable, but did not have the same effect upon our procedural statutes relating to the same offenses.

        Compton v. State, 102 Ark. 213, 143 S.W. 897.

      Even the dissenting justice in Walker based his contention, that one convicted of murder in the first degree and sentenced to life imprisonment was not admissible to bail on appeal because he had been convicted of a capital offense, upon the premise that the death sentence could have been imposed. Here it cannot be.


author: George Rose Smith, Justice.

text:
    Morris N. GARRETT v. Nancy M. TRIMUNE
    5-6218
    491 S.W. 2d 586
    Opinion delivered March 19, 1973

      Guy Jones Jr., Guy H. Jones, and Phil Stratton, for appellant.

      Davis, Plegge & Lowe, for appellee.
   George Rose Smith, Justice.

This action arises out of a traffic collision on Interstate 40, near North Little Rock. In the court below the appellee, as plaintiff, obtained a $1,000 verdict and judgment for her property damage. For reversal the defendant argues two asserted errors in the admission of evidence.

Just before the collision the parties were both traveling east on a divided four-lane highway. The plaintiff testified that she was in the north lane and was overtaking a line of vehicles moving more slowly in the south lane. She said that the defendant, without giving any signal, suddenly pulled out in front of her, from the south lane. The plaintiff at once applied her brakes, but she was unable to avoid hitting the defendant’s car as he attempted to return to the south lane.

State Police Officer Gravett, as a witness for the plaintiff, was asked if he attempted to determine in which lane the accident occurred. His answer was: “Yes, sir. I usually go by skid marks, debris, and what the drivers testify, and at the time the best I remember both agreed about where it happened was approximately five feet north of the center line.” Later on the officer said that the debris on the highway was “[i]n the vicinity of how I stated the point of impact [ajwhile ago. It was in the north lane eastbound.”

The defendant, citing S and S Constr. Co. v. Stacks, 241 Ark. 1096, 411 S.W. 2d 508 (1967), argues that the trial court erred in allowing the officer to express his opinion about the place of impact, the facts being so simple as to be within the jury’s comprehension. Here, however, Officer Gravett did not express an opinion. He said, in effect, that the versions of both parties agreed that the collision occurred approximately five feet north of the center line. The defendant’s statement was competent evidence against him, as an admission. Sherman v. Mountain Poultry Co., 243 Ark. 301, 419 S.W. 2d 619 (1967). Since the officer’s testimony was admissible in part, the objection to the whole statement was properly overruled. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S.W. 681 (1927).

It is also argued that the plaintiff should not have been allowed to state the value of her car before and after the collision, without a prior showing of expert knowledge on her part. The answer to that argument is that the plaintiff, as the owner of the car, was qualified to give her opinion of its value. Phillips v. Graves, 219 Ark. 806, 245 S.W. 2d 394 (1952). If the defendant thought that the plaintiff had no reasonable basis for her opinion, that fact should have been shown by cross-examination, as a foundation for a motion to strike the testimony. Ark. State Highway Commn. v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511 (1969). No such showing having been attempted, the testimony was admissible.

Affirmed.