text:
    William Orman v. O. E. Bishop, superintendent, arkansas state penitentiary
    5369
    435 S.W. 2d 440
    Opinion Delivered December 23, 1968

      Terral, Rawlings, Matthews & Turtle for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   John A. Fogleman, Justice.

This is a sequel to Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908. There we remanded appellant’s petition for post-conviction relief. We found that there was a question of fact as to whether appellant voluntarily changed his pleas from not guilty to guilty on five counts of robbery. Since the trial judge had not made specific findings on this point, as required by Criminal Procedure Rule I, and his testimony on this critical point was important, we directed a hearing by another judge on remand. After a hearing by a circuit judge assigned to the Pulaski Circuit Court for this purpose, appellant was again denied relief. He brings this appeal, relying upon the following points:

“I. That petitioner’s constitutional rights were violated by prolonged detention before being charged.
II. Petitioner’s constitutional rights were violated by the hearing on his plea without the presence of his attorney.
III. Petitioner’s plea of guilty was entered as a result of duress and at a time when he did not fully understand the results of the plea.”

At the second hearing the matter was submitted to the judge on assignment upon the record made in the previous hearing, together with the testimony of the petitioner and five other witnesses, some of whom also testified at the previous hearing. One of the witnesses was Judge William Kirby, the judge presiding when appellant’s pleas of guilty were accepted. The testimony taken at the second hearing is substantially the same as that given at the first hearing. The testimony of the trial judge is virtually identical with the statement he made at the first hearing. Consequently, we will not set out the testimony at length, but will only refer to such of it as may be necessary in considering the points urged by appellant.

POINT I

This point has not been raised at any stage of the proceeding prior to the filing of appellant’s brief on appeal. Even though it involves an assertion that constitutional rights of an appellant were violated, it cannot be raised for the first time on appeal. Silas v. State, 232 Ark. 248, 337 S.W. 2d 644, cert. denied 365 U.S. 821, 81 8. Ct. 705, 5 L. Ed. 2d 698; Clayton v. State, 191 Ark. 1070, 89 S.W. 2d 732. Even if the question had been properly raised, we find no merit in the argument. It is based upon the fact that appellant was subjected to in-custody interrogation while held in the North Little Bock jail from 8 p.m. on Tuesday until 9 p.m. on Saturday without being charged. This was in November and December of 1963, so the Escobedo and Miranda decisions have no bearing in this case. Swagger v. State, 227 Ark. 45, 296 S.W. 2d 204, cited by appellant, has no proper application to the facts here. That case involved an indigent, illiterate minor whose conviction on a plea of guilty was set aside because he was deprived of due process because of the failure of the court to appoint counsel before the plea was accepted. The few days of detention of Swagger was only a minor incidental fact considered by the court in arriving at its holding. The trial judge made specific findings here that petitioner was not denied the right to remain silent and was advised of the probability that anything he might say would be used against him. He made the further finding that appellant voluntarily, expressly, knowingly and under standingly waived the right to counsel and gave a voluntary statement that was not used against him. There is substantial evidence to support these findings. We have previously found that the evidence preponderates against appellant as to mistreatment by officers while in the North Little Bock jáil. Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908. We find no reversible error on this point.

POINT H

Orman was brought before the court as the result of a message from him to the judge indicating that he wanted to change his pleas.

On this point, Judge Kirby testified, in substance: After being advised of Orman’s desire, the judge interrogated him about the identity of an assailant. This questioning was provoked by appellant’s appearance which obviously indicated that he had been beaten. Or-man refused to disclose this information, in spite of the judge’s promise that the person named would be charged with assault with intent to kill. Orman wanted to enter pleas of guilty, go to the penitentiary and get it ovei with. The judge was reasonably certain that he asked Orman where his lawyer was.

In spite of the fact that Orman had advised the judge that Charles Scales was his lawyer and Scales had consulted with Orman several times, there is no indication that Orman ever asked for, or had, any consultation with Scales about the change of his plea at any time. Although Scales denied that he ever advised Or-man to plead guilty, on the first hearing Orman testified to the contrary. On the second hearing, Orman stated only that he does not remember telling Judge Kirby that he wanted a lawyer when brought before the judge for this purpose. The trial court found that appellant’s appearance before the court when his pleas were changed did not violate his Fifth Amendment right to counsel, having been brought before the court at his own request. The court also found that he had voluntarily, knowingly and understanding^ decided to change his pleas, and waived his right to counsel. We find substantial evidence to support the findings of the trial judge. Or-man was not uninitiated in criminal procedures. He admits previous convictions in four felony cases, each after trial in a different jurisdiction.

We are unable to say that tbe findings of the trial judge, who saw and beard tbe witnesses, are not fairly supported by tbe evidence.

POINT III

Tbe trial judge found: 'That appellant was not harassed or mistreated by any law enforcement officer while in the Pulaski County jail, and that his beating by a fellow inmate was not directed, procured or suffered to happen by any law enforcement officer; that appellant did not receive a threatening note as testified by him; that he was not denied the right to contact anyone; that tbe beating of appellant, alone or in conjunction with the alleged note, did not render the decision to plead guilty involuntary, although it may have accentuated the timing of the decision; that Judge Kirby advised appellant not to plead guilty if he was not guilty, that he thought Orman was a “21-year man” and that if a jury trial on .each charge was requested, the sentences would be “stacked” (ie., the judge would make the sentences run consecutively).

There were also findings that the judge’s statements did not coerce or induce the change of pleas. These findings were based, in part, on testimony tending to show that: The statements of the judge about his practice in making sentences imposed by juries run consecutively was made after Orman had clearly indicated his desire to change his pleas and had inquired about what the judge had in mind for his sentence. When the judge indicated that he thought a 21-year sentence-appropriate, Orman expressed the thought that the sentence was too heavy. The judge advised him of his practice in case of multiple convictions after advising him that he had a perfect right to reconsider, change his plea to not guilty and stand trial on the five counts with which he was charged. After this explanation, Orman decided to stand on his pleas of guilty.

If Orman, feared a 105-year sentence, his fear was induced by his own knowledge of the hazards involved and not by any coercion by the trial judge. A failure of the judge to advise a defendant of such a practice under the circumstances as they arose might have been the basis of appropriate criticism. His advice here is not.

There is no evidence showing that any officer had any connection with the beating administered to Orman by Scrappy Moore. The only evidence remotely suggesting the connection of any officer is the testimony of appellant that his beating followed closely upon a suggestion by Lt. Munn that he had better plead guilty if he wanted to do well. Moore was immediately removed from the cell or “bull pen” and Orman given hospital treatment. When he was returned to the jail, he was placed in a cell in another section of the jail with another prisoner.

There are discrepancies in the testimony of Orman at the two different hearings. For example, at the first hearing he told of a note received by him after the beating telling him he had better plead guilty if he wanted to get out of the jail alive. He said that the note was signed by an inmate named Bill and gave other identifying information about him. At the second hearing, Orman stated that he didn’t know who wrote the note. Orman’s admission of four felony convictions also bears materially on his credibility. Under the circumstances, he could not have been entirely ignorant about the effect of a plea of guilty.

The judgment is affirmed.

       378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977.

       384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    June Allred v. National Old Line Ins. Co.
    5-4789
    435 S.W. 2d 104
    Opinion Delivered December 23, 1968

      Walker & Campbell and Paul Jackson for petitioner.

      J. Loyd Shouse and Lloyd B. McCain and Clyman E. Izard Jr. for respondent.
   John A. Fogleman, Justice.

June Allred has filed a petition for a writ of certiorari seeking to review the action of the trial court in quashing service of summons and refusing to enter a default judgment in her favor. Petitioner had filed suit in the Circuit Court of Boone County against the National Old Line Insurance Company and the Harrison Federal Savings and Loan Association on May 3, 1967. Summons was directed to National Old Line Insurance Company and Harrison Federal Savings and Loan Association and was served May 3, 1967, on Betty Yarbrough in Boone County as agent for the respondent. On July 14, 1967, respondent filed motion to quash service of summons on the grounds that Betty Yarbrough was not an officer, agent or employee of respondent and that she was not authorized to receive or accept process on its behalf.

On November 14, 1967, after a hearing was held, the trial court determined that Betty Yarbrough was not a proper agent for service and granted the motion to quash. The court found that it had jurisdiction and that new service should he had upon respondent’s admitted agent in Boone County. It also said that the respondent should have the regular statutory period within which to plead or, in the alternative, defendant could, if it so elected, plead further without requiring the expense and necessity of new service.

On November 21, 1967, respondent filed an answer and cross-complaint without any other process having been issued. On November 28, 1967, petitioner entered a motion to strike the answer and cross-complaint for the reason that it was filed out of time and that there was no basis in law for allowing it to be filed, reserving her objection to the court’s decision on November 14. Petitioner also requested that a default judgment be entered in her favor. The court held that it had been without authority in allowing respondent to answer without new service of process and that petitioner’s entitlement to default judgment had been decided in the order of November 14. The court, therefore, granted the motion to strike the answer and cross-complaint but did not dismiss the complaint or enter judgment for costs in favor of respondent.

Rather than cause new process to be issued petitioner filed this petition. We ordered the complete record brought up so that we could adequately determine the questions raised by petitioner.

Petitioner argues two points for the granting of the writ. We deem it necessary to consider only one of them. It is stated by petitioner thus: “An order sustaining a motion to quash is not final and is not therefore, an appealable order and the only remedy available to petitioner is a writ of certiorari. ’ ’

We agree with petitioner that in this case the order sustaining the motion to quash the issuance of the summons is not final and is therefore not appealable. Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W. 2d 814; Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. There are some cases which appear upon superficial examination to be in conflict with the above, but we feel that they are distinguishable.

For an order of a trial court to be appealable to the Supreme Court it must be final. Ark. Stat. Ann. § 27-2101 (Repl. 1962). In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 we said, “For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.” If an order of the trial court meets the above test then it is appealable.

In Hogue v. Hogue, 137 Ark. 485, 208 S.W. 579, the court allowed an appeal from an order quashing; service where the trial court had also granted a judgment that the defendant go hence without day. Commenting on the appealability of orders quashing service of summons the court said, “On the other hand if the trial court quashes the writ, the plaintiff may take an alias summons and thereby waive objection to the judgment of the court; or he may rest upon the quashal of the writ and appeal from the judgment of the court quashing the summons and permitting the defendant to go hence without day or what amounts to the same thing, dismissing the plaintiff’s action.”

In Bank of the State v. Bates, 10 Ark. 631, the order quashing the writ was held to be appealable because the trial court quashed the summons and allowed a judgment for costs, the effect of which was to dismiss the parties from the court.

The court in Berryman v. Cudahy Packing Company, 189 Ark. 1151, 76 S.W. 2d 956, allowed an appeal from an order quashing service where the trial court had subsequently dismissed the complaint.

An order sustaining defendant’s motion to quash service of summons was held to be appealable in Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W. 2d 919. The court there observed, “The record here reflects that appellant elected to stand upon the service of process first had and obtained, and this was tantamount to a dismissal of the complaint and a final order from which an appeal lies.”

In Safeway Stores v. Shwayder Bros., 238 Ark. 768, 384 S.W. 2d 473, the trial court sustained a motion quashing the service and the summons on the grounds that the statute under which service was obtained was unconstitutional. In holding that the order was appealable the court said, “That holding by the court amounted in fact to a judgment on the merits of the real issue raised by this appeal. Not only so, but the trial court also said, ‘this court is without jurisdiction as to’ appellee. This certainly makes it clear that appellant would not be allowed under any circumstances to try its case against appellee.”

In order to resolve any apparent conflict among previous decisions we hold that no appeal lies from an order quashing process or its service unless the party seeking review has elected to stand upon the process served and suffered an adverse judgment tantamount to a dismissal of his action, or unless the quashing of the process has the effect of preventing the trial of the action in the court in which it is filed under any circumstances.

In the case before us petitioner’s rights have not been finally determined. Her complaint has not been dismissed and she only has to cause service of an alias writ to be had upon respondent’s admitted agent in order to try her case on the merits.

It does not necessarily follow that the trial court’s order may be reviewed on certiorari, simply because it is not appealable.

The applicable rule was clearly stated in Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S.W. 1064 where this court said, “According to the well settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to ■which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right of appeal, but lost it through no fault of his own; and (3) in cases where it has superintending control over a tribunal which has proceeded illegally and no other mode has been provided for directly reviewing its proceedings. But it cannot be used as a substitute for an appeal or writ of error, for the mere correction of errors or irregularities in the proceedings of inferior courts.” See also Hendricks v. Parker, 237 Ark. 656, 375 S.W. 2d 811.

In the case before us it is not contended by petitioner that the trial court had exceeded its jurisdiction or that petitioner had the right to appeal but had lost it through no fault of her own. Petitioner does contend that she has been aggrieved by the trial court’s order and that she has no other mode of review except certiorari.

Although it is true that no appeal lies from the order complained of, petitioner may elect to stand on her service and have final judgment entered dismissing her complaint from which, of course, she may appeal. This court has held that a writ of certiorari will not lie to review an interlocutory order of a lower court which has proper jurisdiction. Sanders v. Plunkett, 40 Ark. 507. See also, Williamson v. Killough, 185 Ark. 134, 46 S.W. 2d 24. We agree with the statement made in Sanders v. Plunkett, supra, ‘ ‘ The result of this doctrine, once admitted, would be that in all cases where the object of a bill would be accomplished by obtaining, or defeated by the refusal of an interlocutory injunction, an application might be made directly to this court, for original jurisdiction, to determine upon its merits a cause never presented to any court at all, nor entered upon its records. This under the Constitution can never be permissible.”

The writ is denied.

       In spite of the fact that this is a petition for certiorari, we refer to National Old Line Insurance Company as respondent because they were so named in the petition and in the briefs filed.

       Although an appeal from an interlocutory order relating to an injunction has now been provided for by statute, the principle stated in this case remains sound. It is significant that the statute, Ark. Stat. Ann. § 27-2102 (Repl. 1962), does not provide for review of orders such as those involved here.


author: J. Fred Jones, Justice.

text:
    Lonnie B. Mitchell v. O. E. Bishop
    5346
    435 S.W. 2d 91
    Opinion Delivered December 23, 1968
    [Rehearing denied January 20, 1969.]

      McMath, Leatherman, Woods & Youngdahl and John P. Sizemore and Gaughan, Laney, Barnes & Roberts and Rafael Guzman (of Counsel) for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

This case presents an excellent example of the inadequacy of the judicial machinery in our dual court system for final disposition of a criminal case where a confession is used in evidence against the one who makes it, and under modern interpretation and concepts of the due process clauses of Amendments 5 and 14 of our Constitution. The question now before this court, and one which we anticipate will be here again, is whether a confession made by Lonnie Mitchell, more than nine years ago, was voluntarily made without coercion.

The appellant, Lonnie Mitchell, was convicted of the crime of rape in Union County, Arkansas, in March 1959, and sentenced to death by .electrocution. He admitted the rape in a recorded confession, the recording was played to the jury at his trial, and upon appeal to this court the conviction was affirmed. (Mitchell v. State, 230 Ark. 894, 327 S.W. 2d 384.) The appellant then filed a petition for writ of habeas corpus in the Jefferson County Circuit Court, the application was dismissed and was affirmed by this court on appeal. (Mitchell v. State, ex rel Henslee, 233 Ark. 578, 346 S.W. 2d 201.) Appellant then filed an original application with this court for permission to file a petition for a writ of error coram nobis in the trial court relative to his sanity at the time of the trial. This application was denied. (Mitchell v. State, 234 Ark. 762, 354 S.W. 2d 557.) Appellant then instituted habeas corpus proceeding’s in forma pauperis in the TJ. S. District Court for the Eastern District of Arkansas and the petition was denied on the grounds that he had not exhausted his state remedies. (Mitchell v. Henslee, 208 Fed. Supp. 533.) An appeal was taken to the U. S. Court of ApIDeals, Eighth Circuit, from the order of the District Court denying the petition, and the Eighth Circuit Court of Appeals reversed the District Court. (332 Fed. 2d 16.) On remand to the District Court, hearing was had in which appellant testified and the District Court filed an opinion in support of its conclusions denying the petition. (Mitchell v. Stephens, 232 Fed. Supp. 497.) Appellant again appealed from that decision to the Eighth Circuit Court of Appeals and argued five points for reversal.

In a thorough, analytical opinion, the Eighth Circuit Court of Appeals took up and disposed of each of the points raised by the appellant in their proper order. The Eighth Circuit Court of Appeals disagreed, however, with the District Court’s conclusions that the appellant effectively waived the question of coercion in connection with his confession by not raising that question at his state trial, and the court summarized and concluded its holding as follows:

“In summary, therefore, on the confession point, we hold that this record does not establish involuntariness as a matter of law or that Mitchell effectively waived the issue of coercion; that the District Court’s determination that the defense claim as to the absence of assistance of counsel has no substance is adequately supported by the record ; but that, under Jackson v. Denno, Mitchell is entitled to an independent state court determination as to the voluntariness of his confession.
The order of the District Court dismissing the petition for a writ of habeas corpus is reversed and the case is remanded with directions to grant the state of Arkansas a reasonable time to afford Mitchell an appropriate hearing on the issues of voluntariness of his rape confession or, in the alternative, a new trial.” (353 F. 2d 129.)
The Eighth Circuit Court of Appeals held that:
“... [U]nder Jackson v. Denno, Mitchell is entited to an independent state court determination as to the voluntariness of his confession.”

In commenting on Mitchell’s contention in the federal court, that his court appointed attorney failed to present his defense of coercion, the court of appeals at page 145 of the Federal Report said:

“It is to be observed again that as to some of these facts there is sharp conflict in the evidence. Thomas and others testified of free access to Mitchell and of frequent consultations. It is true that the coercion issue was not raised and its existence was even specifically denied by counsel during the trial. But if Mr. Thomas’ testimony is to be accepted, this was a matter of definite and deep concern to him. He reviewed it with Mitchell, but he was given no material with which to work. In any event, it is before the court now and Mitchell, as we have held above, is to have his day in court on this claim and must make his case if he can.”
(Emphasis supplied.)

Upon remand to the Union County Circuit Court, the appellant was afforded an open court hearing before Judge Grumpier on April 25, 1967, and the appellant was present in court with his parents and his attorney at this hearing*.

At the hearing afforded the appellant on April 25, 1967, the appellant’s attorney and the state’s attorney agreed to submit the matter to the trial judge on the records already made in the state and federal courts. The attorneys waived oral arguments, both sides submitted briefs, and with the exception of Sheriff Bishop’s short addition to his previous testimony, as to attorney Thomas visiting the appellant in jail, no additional evidence was offered by the state and no additional evidence at all was offered by the appellant. The trial judge, of necessity, made his findings of fact and conclusions of law from the records before him, which were the same records that were before the circuit court of appeals when that court remanded the case with directions to afford Mitchell an appropriate hearing on the issue of voluntariness of his rape confession or, in the alternative, a new trial.

Following the hearing on April 25, 1967, and the submission of briefs on July 14, 1967, the state trial court filed its findings of fact and conclusions of law on December 7, 1967, and entered judgment holding that the confession of the appellant was voluntary and made of his own free will. The appellant again filed a motion for a new trial which was denied by the trial court. He has again appealed to this court and directs his argument primarily to the denial of his motion for a new trial.

Appellant argues rather sharply, that the trial court considered extraneous and prejudicial evidence, not concerned with the confession, in reaching its decision, and appellant argues that he has in fact not been afforded a hearing on the voluntariness of his rape confession. We do not gather such inferences from the record before ns. We conclude from the record before ns, including the trial court’s findings, that an appropriate and adequate hearing was afforded Mitchell on the voluntariness of his rape confession, but that no material evidence was offered by the state at that hearing and none at all was offered by the appellant.

The Circuit Court of Appeals set out in its opinion the entire proceedings of the hearing in chambers at the state court trial, and as related to the voluntariness of the confession, the court of appeals considered the hearing in the light of Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, and on this point reached the following conclusion:

<!...[W]e are almost persuaded that Denno has no application here and that, if it has, its requirement has been met. However, in the light of facts, as they are now asserted and disputed at this late hour, we are not so completely satisfied about the fulfillment of Denno’s standards that we possess, to a realistic certainty, a sense of sureness as to the Supreme Court’s attitude. This is, after all, a case of ultimate consequence to Mitchell.
... If an independent state determination of the issue of voluntariness had not been made by the judge or by a jury distinct from the trial jury itself, see footnote 19 in Jackson v. Denno, p. 391 of 378 U.S., 84 S. Ct. 1774, then Mitchell is entitled at least to his hearing. Because of a mild doubt on our part, we remand. The eventual result may or may not be the same. But all will then know that the rule of Denno will have been satisfied and that Mitchell’s constitutional rights will have been clearly protected. ’ ’

In the absence of additional evidence before the trial court on remand, the trial court had the duty of ■weighing all the evidence in the records before him pertaining to the voluntariness of the confession, and in doing so the credibility of all the the testimony of all the witnesses, including the appellant’s own testimony as to coercion, should be weighed, considered and evaluated. From the trial court’s findings of fact and conclusions of law in the record before us, we are unable to determine what weight Judge Crumpler gave to the evidence in the records before him. The record indicates the possibility that Judge Crumpler may have given undue weight to the record of chamber proceedings had at the original trial and that in considering this case in the light of the “orthodox” or Massachusetts rule approved and set out in footnote 8 to Jackson v. Denno, he may have concluded that Jackson v. Dcmuo did not apply or had been fully complied with at the original trial. If Judge Crumpler did so consider the chamber proceedings at the original trial, that was the precise point upon which the Eighth Circuit Court of Appeals did not agree when it directed a remand of this case with instructions to afford the appellant a hearing on the voluntariness of his confession.

We find two sentences in the trial court’s findings of fact which are not at all clear to us in the light of the entire record in this case. These two sentences are as follows:

“There is absolutely no evidence of coercion, threat, abuse, enticement or promise of reward whatsoever, but on the contrary, overwhelming evidence shows that such statement was given voluntarily.
It is without contradiction that this Petitioner was informed and apprised of his Constitutional right of self-incrimination of a minimum of five times in addition to advice and counseling on this subject with his attorney.”

We are quite sure that the trial court did not overlook, or intend to ignore, the appellant’s own testimony on these points. As a matter of fact there is evidence of coercion, threat and abuse in this case, and there is contradition that the appellant was informed and apprised of his constitutional rights. The evidence of coercion, threats and abuse, as well as the contradictions, comes from appellant’s own testimony. While the evidence as to coercion, threats, abuse and intimidation going to the voluntary nature of appellant’s confession, is the primary issue involved, the appellant’s own testimony should be weighed on the same scale with the other testimony in this case.

Notwithstanding the procedure we followed in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293, we are of the opinion that this case should be remanded to the trial court for a rehearing or re-examination and re-evaluation of all the evidence pertaining to the voluntariness of appellant’s confession.

Remanded for further procedure.

Byrd, J., not participating.


author: Conley Byrd, Justice.

text:
    Jim Allen, et al v. The Tri-County Watershed Imp. District
    5-4731
    435 S.W. 2d 796
    Opinion Delivered December 23, 1968
    [Suppl. opinion on denial of rehearing January 27, 1969, p. 1060.]

      Fred Livingston and Chas. F. Cole for appellants

      D. Leonard Lingo & Harry L. Ponder for appellee.
   Conley Byrd, Justice.

Appellants Jim Allen et al by this appeal contest the legality of the formation of a watershed improvement district under Ark. Stat. Ann. § 21-901 — § 21-934 (Repl. 1956 and Supp. 1967). For reversal of the chancellor’s decree forming the district they rely upon the following points:

I. The order creating the district does not conform to the petition.
II. The number of valid signatures on the petition as determined by the court is not correct.
III. The names of numerous signers to the petition should have been deleted due to misrepresentation amounting to fraud.

The record shows that the engineering work was done by the United States Department of Agriculture Soil Conservation Service after the petition was signed by the landowners but before the petition was presented to the Court pursuant to Ark. Stat. Ann. § 21-906 (Supp. 1967). The petition itself covered 75,183.08 acres. According to the contour lines surveyed by the engineers 31,093 acres would be benefited by the district. However when the contour lines were converted to conventional land lines by ten acre calls for purposes of publishing the required notice, the total acreage increased to 42,479.70 acres — the latter increase being due to the fact that the total land call was included even though only a portion thereof would be within the benefited area according to the contour lines.

Hearings on the petition and objections thereto were commenced on August 17, 1967, and continued for several days on the issues of whether the petition contained a majority of the landowners both in numbers and valuation.

November 28, 1967, owners of land covering 1,710.57 acres, not within the above descriptions, filed a separate petition asking that their lands be added to the improvement district if the district was formed.

December 14th, the trial court from the bench directed the formation of the district covering the 42,-479.70 acres and immediately took up the petition of the owners of the 1,710.57 acres and directed that those lands be included within the district.

The order from which appellants appeal covered only the 42,479.70 acres, but when they complained in their brief that the order creating the district did not conform to the directions of the court in forming the district, we remanded the record to the trial court, at the request of the appellee district, for the purpose of entering a nunc pro tunc order covering the 1,710.57 acre addition.

Point I. In addition to the facts set forth above, appellants contend that the 42,479.70 acre description includes 2,009.10 acres not covered by the petition. Fox-purposes of this opinion, we assume that they are correct in this assertion.

Under Ark. Stat. Ann. § 21-905 (Supp. 1967) we find that a majority of the landowners both in value and numbers may petition for the formation of an improvement district by “ ... describing generally the region which it is intended shall be included within the district____” Upon the filing of the petition the court is directed to appoint an engineer whose duties shall be “ ... to make a survey and ascertain the limits of the region which would be benefited by the proposed improvements .... ”

In Ragon v. Beakley, 145 Ark. 505, 224 S.W. 946 (1920) we had before us a drainage district in which it was contended that the formation was invalid because the district as formed did not conform to the petition. We there said:

“The original petition is tentative. The provision of the statute is that it shall describe ‘generally the region which it is intended shall be embraced within the district,’ and the engineer’s report is advisory, and not conclusive. In the case of Jones v. Fletcher, 132 Ark. 332, it is said: ‘It is clear, therefore, from the language of the statute, that the final boundaries of the district are to be determined by the court, and are not confined to the area described in the original petition, as the survey, which is made subsequent to the filing of the original petition, necessarily serves as a guide to the court in determining what property will be affected by the improvement.’ ”

In Mahan v. Wilson, 169 Ark. 117, 273 S.W. 383 (1925), it was urged that the published notice of the proposed drainage district was insufficient because it omitted certain tracts contained in the original petition. It was there pointed out that the omission was not error as the report of the engineer was the thing which was the basis for the court’s action in forming the district.

Under the statutory authority here involved, we find no error of the court in excluding lands within the petition but outside the region to be benefited as shown by the engineering report. Likewise we find no error by the inclusion of lands not within the original petition so long as they are within the benefited area and received the proper notice.

Since the trial court directed the formation of the district in accordance with the engineering report before acting on the petition of others who sought to add their lands to the district pursuant to Ark. Stat. Ann. § 21-910 (Repl. 1956), we are unable to see how this gives appellants any standing to challenge the formation of the district. Consequently we find no merit in the contention that the formation decree did not comply with the directions of the court — i.e., to the extent that the order entered by the Court did not affect the 1,710.57 acres.

Point II. The proof as to the number of land owners within the area to be benefited as shown by the engineering report was given by Mr. Fleer Harris who said that there were 423 landowners as reflected by the assessment records. To this number, appellants contend, there should be added the wives of sis landowners who owned land by the estate of the entirety. We agree with appellant that, in accordance with Gardner v. Bullard, 241 Ark. 75, 406 S.W. 2d 368 (1966), both owners of an estate by the entirety are to be counted as landowners in determining the number of landowners within a district. The only trouble with appellants’ contention here is that the testimony of T. IT. Weaver and Homer Bell fails to show whether lands owned by them by the entirety are within the district. However when we give appellants credit for the other four wives, we then have a total of 427 landowners within the district.

For the other leg of their argument, appellants allege that 33 names should be deducted from the 246 petition signatures because of duplication, failure to attest a corporate seal and unauthorized signatures. One name alleged to be a duplication is Jora Milligan, but when we review appellants’ calculation of the number of petitioners we find that on page 30 of the record, they did not include Mrs. Milligan’s name when arriving at the 246 number and that therefore they are not entitled to subtract her name as a duplication unless it is also added to the total number of signers. Appellants also complain that Adrian Boss, Sr’s name was signed by his son without authorization and that George Van Shaver did not sign the petition. We are unable to find any proof relative to Boss’s signature and the Court, in comparing the signatures of Shaver given at the trial with the signature on the petition, could have found that Shaver signed the petition. Thus in recomputing the alleged duplications, deletions, etc., not more than 30 names could be deducted from the alleged 246 signers. This would still leave 216 signers, more than half of the 427 landowners.

Thus it is seen that even if the Court did err in his calculation of the number of signers, his error is harmless since there is still a majority of the landowners on the petition.

Point III. Under this point appellants offered proof that in many instances only a single sheet of paper was presented to them for signing, not a whole petition, and in other instances that they were induced to sign the petition by the representation that the petition was to arrange for a survey to determine the feasibility of forming a district. The proof offered by appellants in this respect was contradicted by the petition circulators. Looking only at the cold record, we are not in a position to say that the Chancellor’s finding contrary to appellants’ argument is against the weight of the evidence.

In their reply brief appellants contend that we should not have reinvested the trial court with jurisdiction for purposes of entering the nunc pro tunc order affecting the 1,710.57 additional acres. As pointed out above we do not see how appellants were prejudiced by the procedure but in any event we consider the procedure to be authorized by Ark. Stat. Ann. §27-2129.1 (Repl. 1962) for purposes of making the record speak the truth.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    F. A. Weigel, Jr. et al v. Floyd Cooper, et al
    5-4696
    436 S.W. 2d 85
    Opinion Delivered January 13, 1969

      Hodges, Hodges & Hodges for appellants.

      Lloyd Henry for appellees.
   Carleton Harris, Chief Justice.

The question in this litigation is whether appellees and the public acquired an easement by prescription over a road located upon land belonging to appellant, F. A. Weigel, Jr. Appellees instituted suit in the Woodruff Chancery Court, asserting that the road, known as the Tobe Eoad, had been used by the general public for a period of time in excess of 30 years, but that appellants, during 1967, constructed a barricade across the road, preventing appellees and the general public from traveling same. The barricaded road, according to appellant was a “new” road, not in exactly tbe same location as tbe older one, dragline work having been performed on the ditches, and a motor grader having been used to clear up the road; an injunction was sought against appellants prohibiting the latter from maintaining the barrier. Appellants denied that the road was a public road, or that it had been used as such, but alleged that if the road had been used by the public for any length of time in excess of 7 years, the use was permissive and not adverse. The court entered a temporary injunction, but on hearing made the injunction permanent, finding:

“That the roadway known in the record as the ‘Tobe’ road was established in ancient times and has been used as a means of ingress and egress to and from the settlements along White River and Civilization until the mind of living men run not to the contrary. It seems to the Chancellor that the roadway became a public road by usage long before Plaintiff’s acquired title to the lands through which it ran and has never been abandoned by the traveling public. The fact that plaintiffs have acquired the lands, cleared the forest, destroyed the old road and constructed a new one on the same alignment generally would not destroy the right of ingress and egress to plaintiffs which goes back into antiquity.”

Prom the decree entered accordingly, comes this appeal. Por reversal, it is urged that the trial court erred in not sustaining appellants’ motion challenging the sufficiency of the proof at the conclusion of the evidence offered by appellees; it is further contended that the Tobe Road is not the same as the road presently existing, and it is finally asserted that any use made by appellees was permissive.

As to the first point, there is considerable evidence that the Tobe Road had been in use for a long number of years. Floyd Cooper, a resident of Augusta, described the road as one that runs along the township line between Sections 35 and 34 on the north side and Sections 2 and 3 on the south side. He stated that he used this road in going to and coming from his farm. This road leads to White River where it runs into another road known as the River Road. Cooper testified that he first started using the road in 1936; that he had hauled his farm products in and out on this roadway, and that there had never been any fence, gate, gap, or other obstruction across it. The witness said that he had never been told to stop using it, and that he had never sought anyone’s permission to travel over it. There are other roads in the vicinity, one requiring 7 or 8 miles further travel, and another (Wire Road) requiring about 10 miles more travel, this last road also frequently being under water. The road (to be) was located on unenclosed timberland, and for over 30 years, had wound through the woods. According to Cooper, slight changes in the location occurred from year to year due to mud holes, but the road which Weigel had constructed was pretty well in the same location, i.e., no more than 10 to 20 feet away from the original location.

Ray McSpadden, a landowner in the area, testified that he had used the Tobe Road 95% of the time as the nearest and most direct route to his farm; that he had used it for about 9 years; that it liad never been closed at any time until appellants’ action about 2 months previous to the litigation. McSpadden said that the road had not changed its course and direction, except that it was now a little south of the previous location. The witness said that he probably made 300 trips a year over this roadway.

W. H. Foster, a landowner in the White River bottoms, testified that the Tobe Road had been used as long as he could remember, and he mentioned several persons, including his grandfather, who had used it. He said that all the families that lived south of the county road had to use the Tobe Boad to get out from the bottoms, because the Wire Boad was too low and frequently flooded. This witness testified that there had never been any obstructions on the Tobe Boad, and he had never been told previously by anybody not to use it. He said that no one ever sought permission to use it.

Jim Nelson testified that the road had been used as far back as 1918.

Henry Parker had lived in the area until 1940, and he said that the road was open during the entire time that he lived in the vicinity (1921 until 1940); that it had been used to bring out the crops. The witness said that he had not been back to the area until about 2 years before the trial, at which time the land had been cleared; though the present road was a great deal straighter than the original Tobe Boad, “ generally the road was in about the same area.” He said that, back in the ‘30’s, the Tobe Boad was “cut back” every year by the people who lived in the area, though the owner of the land never participated in this effort.

Jim Barnett likewise testified that he had frequently used the Tobe B.oad from about 1933 to about 1935. Pie said that the location of the improved road is ‘ ‘ pretty close to the old one.”

Gentry England testified that the road had been used for the last 41 years; that people farming on the river would cut trees or bushes along the edge of this road, and remove all other obstructions which had fallen into the roadway.

At this point appellees rested, and appellants filed a written motion to dismiss the complaint. The court overruled the motion, and this action is assigned as error. It is pointed out that the lands were open, unenclosed, and unimproved, and. this being true, the presumption is that the use of the roadway was permissive. Appellants then assert that permissive use of a road will never ripen into a prescriptive easement, and accordingly (it is argued) it makes no difference how long the road was used. We do not agree that the record reflects that the use of this road commenced by permission of the owner or owners, but even if that were true, we could not agree that this complaint should have been dismissed. In Fullenwider v. Kitchens, 223 Ark. 4-42, 266 S.W. 2d 281, this court said:

“A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or -where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.”

In Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225, we held that the granting of such a motion was proper only if the evidence, when given its strongest probative force, failed to make a prima facie case. We then pointed out:

“* * * Furthermore, in many instances the plaintiff’s prima facie case must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture. If the case goes to the trier of the facts on the plaintiff’s proof alone, the defendant has the advantage of not exposing weaknesses in his own armor unless called to the witness stand by his adversary. For these reasons we have no hesitancy in adopting the majority rule as to the function of a demurrer to the evidence. ’ ’

Actually, we consider that appellees plainly made out a prima facie case of acquiring a prescriptive right to the road in question. The evidence of the many witnesses is positive to the effect that this roadway was well known, and had been used by many different persons for at least 30 years; in fact, the witnesses (linking their testimony) testified to a definite use of the road from 1918 until it was closed by Weigel a few months before the litigation. There was no evidence that any of these people ever sought permission from anybody to travel over the land. Certainly this usage was open, and the length of time with which it was used without objection is potent evidence to show that the use was as a matter of right, and not as a matter of permission. Here too, there is evidence that many of the people who lived in the area and used the road would perform some type of work to improve the roadway. The court did not err in denying the motion.

After the overruling of the motion, appellants placed several witnesses on the stand. The testimony of some of these actually favored appellees. For instance, Dee Wood, a witness for appellants, was familiar with the road, and testified that it did not have any straight course, because there was too much timber; he had also been over the road after improvements by Weigel. The witness said that the old road was more crooked than the present one, but he couldn’t tell too much difference in the exact locations. lie said that it was easy to tell that lots of traffic traveled over the old road.

Cleo Peebles also testified as a witness for appellants. He said that he had used the road, and that it was crooked, running down through the woods. The new Weigel road had been moved east about 100 yards at one point, but otherwise, the road had just been straightened. Peebles stated that he had used the road with the owner’s permission, and “without it too.”

R. J. Haralson testified that he never did get any permission to use the road until he learned that a gate was being placed across it; that he talked with Weigel since he had to have some means of getting out when the Wire Road was not accessible, and was told by the latter that if he (Haralson) would help, they would build a bridge up' at the bay, and a road. Haralson testified that he paid $600.00 under this proposition. He was sent a key to the gate.

Doug Weigel, one of the appellees, and a nephew of appellant, Prank Weigel, was called as a witness for the appellants. This witness testified that his father and uncle had owned this land together as tenants in common. At no time during this ownership had the road ever been closed. As to the location of the “new” road with reference to the old one, Weigel stated that both ended at the same place, and had started at the same place until “this year:”

“They changed it here where it starts off the county road, but other than that it would touch from curve to curve all. the way through. It would touch, I would say, 95% all the way across to the lake. Prom the lake to the river it’s the same.”

According to this appellee, no changes had ever been made in the road until after his father’s death and a division of the property.

John Cook, Director of the A.S.C. office in Wood-ruff County, testified relative to aerial photographs of the area. He said that he could identify Big Jordan and Little Jordan lakes, but in 1962 there was no discernible road between them running ¡east and west. However, he stated that in 1966 (after appellant’s work on the roadway) he could locate this road.

Jim Kreis, one of the appellants, is employed by Frank Weigel as manager of the Weigel lands. He testified that the entire length of the Tobe Eoad was about 1% miles, and that a mile of the new construction was in a different location.

Frank Weigel, Jr., testified that the Tobe Eoad was a typical woods road, winding around the timber and, if bad in a spot, moving over. He said that he decided to straighten out the road which would give him more benefit from the use of it, and accordingly performed drag-line work on the ditches, purchasing a tractor with which to grade the road, and hauling in quite a bit of dirt to raise low places. Appellant testified that generally speaking, the road was in a different location from the original one. Weigel said that the use of the road had been by permission; that he did not know of anyone committing any act that would indicate a claim to the road by adverse possession. The work on the “neAv” road was accomplished in May and June of 1967. Weigel stated that he had not gotten any pipe or gravel from the county to use on the road, though he did admit that he had gotten two pieces of pipe from the County Judge, but stated that these had been placed under the county road. The witness testified that the pipe used for the Tobe Eoad was his own personal property.

The county judge subsequently testified that either Kreis or Weigel conferred with him about getting pipe, and that pipe had been picked up at two different times. He could not say where the pipe was placed, but he was informed that the pipe would be located under a road used by the public. The witness said that the county had been out some expense on all of the roads mentioned during the litigation, which, of course, included the Tobe Road.

Doug Weigel, called in rebuttal, testified that county employees had, at least on one occasion, graded the road with county equipment.

The authorities heretofore cited in this opinion, relative to appellant’s contention that the court should have sustained his demurrer to the evidence, also pretty well answer the other contentions.

As to the argument that the use of the land was pel-missive, Fullenwider v. Kitchens, (heretofore cited) makes clear that, even if the use was begun under permission, that fact is immaterial if it continues openly for seven years under such circumstances that the landowner would be presumed to know that this long continued practice was adverse. The long length of time that the road was used by many persons is, in itself, pertinent evidence of adverse use; actually, it appears from the record that this adverse use was established long before Frank Weigel, Jr., had any proprietary interest in the land on which the road is located. This was the finding of the Chancellor, and we think it is supported by a preponderance of the evidence.

Nor is there merit in the contention that this is a different road. Here again, the preponderance of the evidence is to the effect that the greater part of the “new” road is substantially in the same location as the old Tobe Road. This was testified to by Floyd Cooper, Henry Parker, Jim Barnett, Dee Wood, Doug Weigel, and Cleo Peebles, such testimony having previously been related.

Slight deviations from the accustomed route do not have the effect of destroying a claim to prescriptive right. This is the general rule, and there are cases, so holding, from numerous jurisdictions. In Carpenter v. Schnerle, 91 Neb. 806, 137 N.W. 850, the court held:

‘ ‘ Slight deviations from the line of public travel to avoid mud, pools, or natural obstructions will not necessarily prevent the establishment of a highway by prescription * * *.”

In Lindsay Land and Livestock Company v. Churnos, 75 Utah 384, 285 P. 646, that court stated:

“With respect to the certainty of the line or course of the road, the evidence was also sufficient to support the decree. While the public cannot acquire a right by use to pass over a tract of land generally, but only in a certain line or way, it is not indispensable to the acquisition of the right that there should be no deviation in the use from a direct line of travel. If the travel has remained substantially unchanged, and the practical identity of the road preserved, it is sufficient, although there may have been slight deviations from the common way to avoid encroachments, obstacles, or obstructions upon the road.”

The case of State v. Hull (Neb.) 97 N.W. 2d 535 (1959), cites the Illinois case of Mudge v. Wagoner, 320 Ill. 357, 151 N.E. 276, in which the facts are very similar to the instant litigation. There, the Supreme Court of Illinois said:

“Appellee contends that the record in this case does not show that the same line of travel was followed, and therefore does not show sufficient user by the public to justify a finding that a public highway exists. While the evidence shows that different persons using the road occasionally turned out and used other ruts, there is substantial evidence in the record that the width of the road as used does not extend over 16% feet. It is not necessary, in order to establish a public highway by user, that all vehicles that traverse it shall follow exactly the same rut. If the user is over substantially the same strip, changes in the wheel ruts, necessitated by condition of the road or occasioned by meeting other vehicles, do not constitute a change of location of the road. Nor is the fact, if it be a fact, that appellee in 1891 changed this road so that it extended directly north and south on the east side of his house rather than through his orchard sufficient to defeat the right of the public in the road for two reasons: First, the evidence shows that the right of the public had become established before such change was made; and second, the change having been made by appellee for his own convenience, he is not now entitled to say that, because those who desired to drive over the road followed it as he had changed it, the right of the public in the road as changed became destroyed. Where the owner of land over which a road extends changes the route for his own convenience, and the public continue the use of the highway as changed, the public right therein does not become extinguished, but the right of the public exists in the highway as changed. ’ ’

Affirmed.

Holt, J., not participating.

      Emphasis supplied.

       In McGill v. Miller, 172 Ark. 390, 288 S.W. 932, this court, in litigation involving the use of an alley, said:
      “It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use, so as to ripen into title by a limitation.”
      This case was cited in Fullenwider.


author: George Rose Smith, Justice.

text:
    Russell Patrick v. State of Arkansas
    5389
    436 S.W. 2d 275
    Opinion Delivered January 13, 1969
    [Rehearing denied February 17, 1969.]

      Clarle, Clarle & Clarle for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   George Rose Smith, Justice.

The appellant, charged with the murder of J. F. Wilson, appeals from a verdict and judgment finding him guilty of voluntary manslaughter and sentencing him to two years imprisonment. He argues several points for reversal.

It is first insisted that the court should not have submitted the issue of voluntary manslaughter to the jury, because even if it be assumed that Patrick shot Wilson, there is no proof that he acted upon a sudden heat of irresistable passion. Ark. Stat. Ann. § 41-2208 (Repl. 1964). We have held, however, that the accused cannot complain of such a charge if the proof would have supported a finding that he was guilty of a higher degree of homicide than that for which he was convicted. Trammell v. State, 193 Ark. 21, 97 S.W. 2d 902 (1936). Hence the question is whether the evidence would have supported a conviction for murder.

We hold that it would. Wilson was 76 and Patrick almost 79 on the day of the shooting, August 11, 1967. They were living on adjoining properties on a county road in the Beckett Mountain community in Faulkner comity. Wilson’s widow testified that at about 7:00 a.m. her husband went down to the barn to milk. Upon hearing a loud report from a gun, followed by the barking of the Wilsons’ dog, Mrs. Wilson ran down to the corral and found her husband on the ground, covered with blood. On the way down she had seen Patrick walking toward his own house, carrying a long gun. When Mrs. Wilson reached her husband, he said, “The old man shot me. Why did he do it?”

Wilson was taken to the hospital in an ambulance, and the sheriff was called. Deputy sheriff Joe Martin, state police officer Bill Mitchell, and deputy prosecuting attorney Lynn McClinton answered the call. They had been told by radio that Patrick had shot Wilson. Patrick turned over a shotgun and a rifle to the officers, saying that he had used the shotgun that morning to fire at a hawk in a tree. Wilson died in a Little Bock hospital on September 28. The cause of death was a shotgun wound that severed his spine. The court admitted in evidence a dying declaration in which Wilson said that Patrick shot him.

Upon the testimony as a whole the jury could have found that Patrick deliberately shot his neighbor. He was admittedly at the scene, armed with a shotgun that was fired at ábout the time Wilson was shot. There is no indication that any other possible assailant was in the vicinity, the next nearest house being a quarter of a mile away. Wilson said at least twice that it was Patrick who shot him.

Defense counsel argue here, as they doubtless did to the jury, that there was no reason for Patrick to shoot Wilson. There is proof that the Wilsons and the Patricks had been on friendly terms, though there is some indication that ill feeling had arisen from Patrick’s belief that Wilson had poisoned a bull belonging to Patrick. In any event, the State was not required to prove a motive for the homicide. Avey v. State, 149 Ark. 642, 233 S.W. 765 (1921). Lack of motive was merely a circumstance to be considered by the jury in reaching its verdict, which is conclusive upon the issue of guilt or innocence.

The State introduced three shotgun pellets that were taken from Wilson’s body. A surgeon testified that a fourth pellet, which lodged in the neck, was the cause of death, but that pellet was not recovered at the autopsy. Counsel now contend that the three pellets were inadmissible, not only because they did not inflict the fatal wound but also because they could not be ballistically identified as having been fired from any particular shotgun — especially Patrick’s.

That argument goes to the persuasive force of the evidence, not to its admissibility. The State’s theory was that Patrick had killed Wilson with a shotgun. That shotgun pellets were found in Wilson’s body unquestionably gave logical support to the prosecution’s contentions. The court would have erred if it had excluded such pertinent proof.

In the same vein counsel insist that the prosecuting attorney should not have been allowed to argue to the jury that Patrick had loaded his shotgun with buckshot, there being no proof that Patrick actually had any such shells in his possession. The argument was permissible. The pellets recovered at the autopsy were buckshot. On the basis of that fact, and in the light of all the circumstances, the prosecutor was certainly entitled to present the State’s theory to the jury. The court properly cautioned the jury that the prosecutor’s statement was not evidence in the case.

The appellant’s three remaining contentions have to do with the admissibility of evidence. We find no error in the court’s action in admitting a dying declaration made by Wilson to Fern Soules, a minister who often talked with Wilson at the hospital. Mrs. Soule’s testified that when she tried to encourage Wilson by saying that he would be (all right, he would say, “Ob, no!” or shake his head. JThe court property instructed the jury that the dying declaration was not to be considered unless the jury found it to have been made under a sense of impending' death. Alford v. State, 161 Ark. 256, 255 S.W. 884 (1923); cf. Barnhart, The Determination of Facts Preliminary to Admission of Evidence in the Arkansas Courts, 2 Ark. L. Rev. 1 (1947). Even though the proof of Wilson’s hopelessness was not as strong as it might have been, it was sufficient to take the issue to the jury.

Next, we think the court properly overruled the defendant’s motion to suppress proof that Patrick turned his shotgun over to the officers on the morning of the crime. At that time no Miranda warning was required, because the officers had not arrested Patrick or deprived him of his freedom in any way. Miranda v. Arizona, 384 U.S. 436, 477 (1966). Furthermore, even if the officers had first arrested Patrick, they could have searched the premises as an incident to the arrest, Ker v. California, 374 U.S. 23 (1963); so he merely consented to what might have been done without his permission.

Finally, the court was right in allowing the jury to take four photographic exhibits into the jury room, even though the photographer liad noted on the back of each picture the direction toward which it was taken and some indication of what it portrayed. Substantially the same information had already been given under oath when the pictures were received in evidence. Even if a minor detail or two had not been covered in the testimony, we find no possibility of prejudice.

Affirmed.


text:
    Garrison Furniture Company, et al v. Southern Enterprises, Inc., et al
    5-4694
    436 S.W. 2d 278
    Opinion Delivered January 13, 1969
    [Rehearing denied February 17, 1969.]

      Smith, Williams, Friday & Boxeen and Bethell, Stocks, Callaxvay & King for appellants.

      Harper, Young, Bidden & Smith and Hardin, Barton, Hardin & Jesson for appellees.
   George Rose Smith, Justice.

This suit was brought by the four appellants, Garrison Furniture Company, Ballman-Cummings Furniture Company, Ward Furniture Manufacturing Company, and W. H. Lillard, to quiet their title to about 91 acres constituting the southern part of a riparian tract, sometimes called Morris Island, that lies along the east bank of the Arkansas River in the city of Fort Smith. The principal defendant, Southern Enterprises, Inc., claimed title by adverse possession and also by a chain of conveyances beginning with a 1920 deed from the State Land Commissioner and ending with a 1964 deed from five individual codefendants to Southern Enterprises. The chancellor found that Southern Enterprises and its predecessors had acquired the entire 91 acres by adverse possession under color of title for more than seven years. The accuracy of that finding is the issue on appeal.

The river flows north as it passes the area in dispute. Morris Island, from its southern tip just north of the Garrison Avenue bridg;e, is separated from the mainland to the east by a deep narrow slough that is ordinarily filled with water. Through the years the island, comprising wooded areas and two or three open hay meadows, has been subject to inundation from time to time and was apparently thought to be of little value until the Government decided to make the river commercially navigable. This suit to quiet title was eventually filed by the appellants on January 19, 1967.

The four tracts owned by the four appellants lie in a north-south tier along the slough, with metes-and-bounds descriptions that purport to extend to the bank of the river. On the east side of the slough the tracts are in the furniture manufacturing district and are the site of furniture factories and appurtenant buildings. Beginning at the south, the tracts are owned successively by Lillard, Garrison Furniture Company, Ward Furniture Manufacturing Company, and Ballman-Cummings Furniture Company. The appellee Southern Enterprises owns the tract lying north of Ballman-Cummings.

For many years the channel of the river has gradually shifted back and forth. It is the appellants’ theory that the tract now in controversy lay on the east bank of the river when the Government originally surveyed the area. Thereafter the river gradually edged eastward, with the slough marking the line of its maximum eastward progress. Thereafter the channel slowly retreated to the west, with the southern part of Morris Island building up as an accretion to what are now the appellants’ lands. Upon that theory the appellants claim record title to the property in question.

The appellee’s theory is that Morris Island originated as two small islands that emerged from the river and thereby became the State’s property at some time before its deed to the appellee’s predecessor in title in 1920. Eventually the two small islands grew by accretion into what is now known as Morris Island. Alternatively, the appellee claims title by adverse possession under color of title. The latter theory was adopted by the chancellor.

We think it ¡essential to first determine whether the problem area came into being as an island or as an accretion to the mainland, because in the circumstances of this case constructive possession follows the true title. Here constructive possession is important, for it is almost undisputed that for many years large parts of Morris Island have been unenclosed woods not actually occupied by anyone. In fact, aerial photographs covering a pivotal period of about thirty years leave us with no doubt whatever that much of the tract in controversy has been unoccupied and unimproved. Indeed, a sporadic cutting of timber is one of the elements of adverse possession asserted by the appellee.

It must be remembered that even if the appellee is right in arguing that it and its predecessors have been in actual possession of a field in the northern part of the 91 acres and of a hay meadow in the southern part, the appellants have also been in actual possession of their lands east of the slough. The appellants correctly assert at page 275 of their voluminous brief that in such a situation of twofold actual possession the true owner is deemed to have constructive possession of that part of the tract not occupied by either claimant.

We considered the point in Smith v. Southern Kraft Corp., 203 Ark. 814, 159 S.W. 2d 59 (1942), where we held that constructive possession follows the true title:

For the reversal of this decree appellant insists that, inasmuch as he had color of title to all the land in litigation, with actual possession of two small parts thereof, the court should have held that he had title to the whole thereof, and his own title should have been quieted. To sustain this contention numerous cases are cited to the effect that actual possession of any part of a tract of land under a deed describing the entire tract is possession to the limits of the calls of the deed.
We reaffirm this rule; but it must be said that it is not one which may or should be applied in all cases and under all circumstances. For instance, the owner of the record title to a tract of land might have actual possession of only a portion thereof, while another having only color of title to the land, might also have actual possession of another portion.
Under the rule above stated, each would have title to the land, provided the occupant who had only color of title had had adverse possession of the portion which he occupied for as much as seven consecutive years. In the case stated, the owner of the record title would have title to the whole of the tract except only the portion which he had lost through the adverse occupancy of the other. This for the reason stated in Union Sawmill Co. v. Pagan, 175 Ark. 559, 299 S.W. 1012, that “The general rule is that constructive possession follows the title, and can only be overcome or defeated by an actual possession adverse thereto. (Citing cases).”

If it be said that the court’s statements in the Smith case were dictum, because there both claimants were not actually occupying part of the property, the answer is that the dictum nonetheless correctly stated the law as it has been announced in other states. In fact, we have found no case to the contrary.

The decided weight of the evidence indicates that Morris Island formed as an accretion to the mainland. Austin Smith, a civil engineer with long experience in river work, testified for the appellants. He reviewed in great detail the history of the river’s channel near Fort Smith, supporting his testimony with many maps, plats, and aerial photographs. He gave convincing reasons for his conclusion that the land in dispute reemerged as an accretion after the channel reached the line of the present slough. It was his belief, based upon many years of study and experience, that islands very rarely form spontaneously in the Arkansas River. An avulsion is nearly always involved, which does not affect title to the land. Goforth v. Wilson, 208 Ark. 35, 184 S.W. 2d 814 (1945); see also Ark. Stat. Ann. § 10-202 (Repl. 1956).

The appellee’s proof falls far short of rebutting the appellants’ theory of the case. The appellee’s professional engineer, James M. Rutledge, referred frequently to Morris “Island” and to the earlier “emergences” from the river, but he gave no reason whatever to lead one to believe that the lands in dispute formed as islands rather than as accretions. On the record as a whole we are firmly convinced that the appellants’ contention on this point is correct.

It follows that the appellants have had constructive possession of all their land not actually occupied adversely by the appellee or its predecessors. Hence the appellee derives no benefit from its color of title. Its claim must be confined to such parts of the 91-acre tract as are shown to have been adversely occupied for seven or more years in succession.

We are not impressed by the appellee’s repeated assertions in its brief that it and its grantors had actual possession of the entire-tract for the required seven years. In actuality, hardly any of their activities affected the tract as a whole. Timber was cut extensively in 1953 and in 1955, but after that there were only occasional insignificant cuttings of locust posts. In the fall of 1959 J. B. Harwood built a fence across the island just south of a cultivated area near the north end of the 91 acres and allowed an undisclosed number of cattle to graze in the area south of the fence. The fence, however, was maintained for only about two years — until the Corps of Engineers began revetment work along the river in 1961 — and Harwood admits that he did not keep his cattle on the property during the summer months while hay was growing.

A series of aerial photographs, taken at about two-year intervals during the critical period from 1952 to 1967, provide convincing proof that there was actually no adverse occupancy of the tract in its entirety during any seven-year period. It clearly appears from these pictures that most of the tract was woodland during the critical years.

There have, however, been patches of actual occupancy. The principal one is an area of cultivated land at the north end of the 91-acre tract, extending down from the appellee’s abutting land to the north. Even the appellants’ own proof, such as their exhibits 12f, 12g, and 12h, establishes this intrusion upon the Bal'lman-Cunmiings tract. The cause will be remanded for the taking of such further proof as may be necessary to a determination of the legal description of that part of the tract that has been adversely held.

The only other cleared area that appears consistently in the aerial photographs is the hay meadow at the southern end of Morris Island. It is not preponderantly proved, however, that the appellee and its grantors had exclusive, continuous, and hostile possession of that clearing for seven successive years.

The hay meadow grew up in natural grass, no one having planted it. M. A. Powers was the first one to harvest the hay with regularity, but he testified that he did not cut the hay in 1960, 1961, 1962, or 1963. J. B. Harwood said that he believed he hayed the land in 1962 and 1963. P. H. Hardin, who looked after the property for himself and the other four owners who sold it to Southern Enterprises, testified in general terms that haying was done through the years, but on cross-examination he admitted with candor that he could not say that he had actually seen either Powers or Plarwood on the land in 1960, 1961, 1962, or 1963. It is not contended that anyone else cut the hay in those years.

Even if we should assume that the cutting of hay-in the warmer months would alone constitute adverse possession sufficient to bring about an investiture of title, the proof fails for the years 1960 and 1961. We shonld add that for a part of that time the appellee relies for its claim of possession upon revetment work done by the Corps of Engineers under written permission given by the appellee’s five grantors. Perhaps the possession of the Corps of Engineers wonld have inured to the benefit of the appellee if it had been entitled to lay claim to the entire tract under the doctrine of color of title. But when that claim fails the effect of the Corps’s work was merely to establish actual possession of the reveted area along the bank. Title to that area, however, has been acquired by the United States in a condemnation proceeding in the federal court; so that possession is of no assistance to the appellee with respect to its claim of having possessed the hay meadow. This leaves the appellee with a valid claim only to the northern field that we have mentioned.

Reversed and remanded for further proceedings.

Holt, J., not participating.

Harris, C.J., and Byrd, J., dissent.


author: Lyre Brown, Justice.

text:
    Like & Casualty Ins. Co. of Tenn., a corp., v. Leopal C. Smith
    5-4730
    436 S.W. 2d 97
    Opinion Delivered January 13, 1969
    [Rehearing denied February 10, 1969.]

      Douglas Bradley for appellant.

      Barrett, Wheatley, Smith & Deacon for appellee.
   Lyre Brown, Justice.

Life & Casualty Insurance Company of Tennessee prosecutes this appeal from a judgment favoring Leopal C. Smith, widow of the insured, W. D. Smith. The application attached to the nonmedieai policy showed the insured to have been in good health. The essential contentions determinative of the appeal are to the effect that Smith was then suffering from physical ailments material to the issuance of the policy; and that the failure to reveal those ailments constituted a fraud which vitiated the policy.

In January 1965, W. D. Smith signed an application for insurance in which a “no” answer was inserted to the following questions:

“17. Is any person proposed for coverage NOT in good health?
19. Is there any history of diabetes, cancer, heart trouble, high blood pressure, mental illness or insanity in the family?
21. Has any person proposed for coverage been treated for or received a physician’s advice concerning
(a) High blood pressure, rheumatic fever, heart trouble, dizziness, syphilis? . . .
(i) Blood, albumin, or sugar in urine?
22. Has any person proposed for coverage
(a) Had any illness, disease, or injury in the past ten years not included in answers above?
(b) Been examined or treated for any reason not included in answers above?”

Dr. Floyd Smith was W. D. Smith’s physician. Dr. Smith testified that he began treating W. D. Smith in 1954 and attended him until death; that W. D. Smith visited his office in March, April, May, and August 1962, in relation to hypertension. In addition, Dr. Eldon F. Caffery testified that W. D. Smith was referred to his office by Dr. Floyd Smith. He testified that he saw W. D. Smith on November 18, 1960, had him go to the hospital November 21 for kidney x-rays, saw him on the 22nd and advised him of the results of the x-rays. The diagnosis was high blood pressure and albumin in the urine. A similar diagnosis was made in Dr. Caffery’s office in 1965.

The proof showed that W. D. Smith died in 1965 of uremia. The death certificate also showed than an antecedent cause was chronic glomerulonephritis.

Ark. Stat. Ann. § 66-3208 (Repl. 1966) provides:
Representations in applications. — (1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise ... [Acts 1959, No. 148 § 275, p.418].

The trial court instructed the jury that appellee would not be barred from recovery unless the insurer established that the deceased knowingly and fraudulently made false statements which induced the issuance of the policy. That statement was not complete in view of Act 148 of 1959. When the insurer in good faith would not have issued the policy except for omissions material to the risk, or incorrect statements likewise material, the policy is subject to voidance during the contestable period. Dopson v. Metropolitan Life Ins. Co., 244 Ark. 659, 426 S.W. 2d 410 (1968) The word “material” is absent from subsection (c); however, that section requires good faith on the part of the insurer. If the matter omitted or incorrectly stated could logically have no bearing on the assumption of the risk then it could not, be successfully argued that the insurer’s “good faith” defense should prevail.

Our holding in Dopson is in accord with one of the leading* authorities, Conch on Insurance 2d, § 35:24, where it is stated:

“If it is shown that the misrepresented matter was material to or increased the risk it is immaterial and irrelevant that the insured had acted in good faith without any bad motive or intent to deceive. This means that if a representation is made which is untrue and material it taints the contract, whether fraudulent or not, and, if untrue and fraudulent, it taints the contract, whether material or not.”

To the same effect see Langlois v. The Wisconsin National Life Ins. Co., 119 N/W. 2d 400 (Wise. 1963). It was there held that an intent to deceive need not be established. “It was enough to prove the making of the misrepresentation and its effect upon the risk undertaken.”

With reference to the alleged harshness of the rule, it should be remembered that the insurer has only two years in which to contest the truthfulness of statements in the application; after that period they are incontestable. See Ark. Stat. Ann. § 66-3304 (Repl. 1966).

Furthermore, Smith was more capable than the average man of contracting, being a part-time pastor and a United States mail clerk. And, just above Ms signature and in clear print, it is stated that “applicant represents the foregoing statements and answers ... to be true and complete.”

The essential facts appear to have been fully developed in the trial below. Medical testimony from two doctors who examined and treated the deceased reflected serious physical ailments which proved to be fatal; that their findings were made known to W. D. Smith; and that the findings were of such serious nature as to call for hospitalization (Smith declined to follow that advice). The insurance agent who took the application, and whose credibility was not seriously questioned, testified that he filled in the answers to the medical questions in the presence of the applicant and on the basis of information supplied then and there by W. D. Smith. No testimony was offered to the contrary. Life & Casualty’s officer in charge of the department which evaluates insurance applications testified that knowledge of the true medical history would have precluded them from writing the policy.

Reversed and dismissed.

Holt, J., not participating.