text:
    C. O. BALDWIN et al v. Perry L. RUSHING et al
    73-21
    497 S.W. 2d 668
    Opinion delivered July 23, 1973
    [Rehearing denied August 27, 1973.]

      Charles W. Atkinson and James R. Hale, for appellants.

      Mahlon Gibson, for appellees.
   J. Fred Jones, Justice.

The tax equalization board in Washington County raised the assessed valuation on a large number of parcels of real property in that county, and the property owners filed a petition in chancery court for an injunction against the tax assessor, the tax collector and the county clerk of Washington County to prevent the extension and collection of taxes as adjusted by the equalization board. Following a hearing on the merits, the petition was dismissed and the property owners have appealed.

It is apparent from the record that beginning in 1968 the equalization board in Washington County embarked upon a project of equalizing the assessed valuation of all property in Washington County, by directing their attention to specific areas to be considered within their allotted time. They first considered the real property inside city limits and then considered real property in the rural areas outside the city limits. The appellants in the case at bar were property owners in the western portion of Washington County who were affected by the action of the equalization board for 1971.

Ark. Stat. Ann. § 84-707 (Repl. 1960) provides as follows:

“Immediately after the assessor files his report of the assessment of real and personal property in the office of the clerk of the county court as by law required, said clerk shall lay said report of the assessment before the Equalization Board, and said board shall proceed to equalize the assessed valuation thereof; and for that purpose the board shall observe the following rules:
(1) It shall raise or lower the valuation of any property to such figure as in the opinion of the board will bring about a complete equalization.
(2) In each instance where the board shall raise the valuation of any property it shall immediately thereupon notify the owner or his agent, by first class mail, of such increase. Provided, all persons present before the board, in person or by agent, at the time such increase is ordered and are there so, notified shall not be entitled to further notice.
(3) Said notice shall state the valuation returned by the assessor and that fixed by the board, and shall advise the owner or his agent that he may, in person, by agent, petition or letter, apply for and receive consideration or hearing by or before said board, provided such application shall be made on or before the first Saturday next preceding the third Monday in September.”

And, Ark. Stat. Ann. § 84-476 (Repl. 1960) provides:

“The appraisal and assessment shall be according to value as required by Section 5 of Article XVI of the Constitution. The per centum of true and full market or actual value to be used in the appraisal and assessment shall be fixed and certified by the Commission as provided by subsection (c) of Section 84-103, Arkansas Statutes, 1947; provided that until and unless a budget system is adopted with provisions for eliminating excessive and illegal tax rates and expenditures, the Commission shall not fix and certify a per centum of true and full market or actual value in excess of twenty per centum (20%).”

The appellants do not question the constitutional authority for the levying and collection of ad valorem taxes on real and personal property in this case. Neither do they question that Art. XVI, § 5, of the Constitution provides that all properties subject to taxation shall be taxed according to its value; that value to be determined in such manner as the General Assembly shall direct, making the same equal and uniform throughout the state. They recognize that no species of property from which a tax shall be collected shall be taxed higher than any other species of equal value, and the appellants point out in their brief that all citizens are required to list all properties subject to taxation (Ark. Stat. Ann. §§ 84-101 and 84-420 [Repl. 1960]) and that the tax assessor under Ark. Stat. Ann. § 12-801 (Repl. 1968) and § 84-414 (Repl. 1960) is charged with the primary duty of seeing that the property in the county, subject to taxation, is properly assessed.

Under the provisions of Ark. Stat. Ann. § 84-442 (Repl. 1960) the tax assessor is still required to make a house-to-house canvass in the county to ascertain if all property has been properly listed, valued and assessed. The tax assessor is then required to file with the county collector his report of assessment of real and personal property and his report is then required by law to be laid before the equalization board which shall then proceed to equalize the assessed valuation (Ark. Stat. Ann. § 84-707 [Repl. 1960]).

For reversal the appellants first contend that the assessor and board of equalization failed to assess and equalize all property in the county as required by the Constitution of Arkansas. From the record before us, it would appear that the appellants have just grounds for complaint as citizens and taxpayers of the county concerning the failure of the tax assessor, to assess personal property in the county. The testimony indicates that large areas of personal property such as commercially operated broiler and poultry producing equipment, including large flocks of poultry, as well as cash and taxable stocks and bonds are simply not on the tax books at all, but this dereliction in the duty of the property owners as well as the tax assessing authorities, is not grounds for the relief sought by the appellants. Rather severe penalties are provided by law for such dereliction in the duties complained of by the appellants, but injunction against assessment and collection of taxes is not one of them. See Ark. Stat. Ann. §§ 84-438 — 440, also §§ 84-458 and 84-511 (Repl. 1960).

The appellants next contend that they as well as other owners of real property similarly situated have been denied the equal protection of law under Amendment XIV of the United States Constitution because their real property has been assessed for taxation and the assessments raised under the theory of equalization while millions of dollars in banks and savings institutions, poultry belonging to large cooperatives and canning companies, are not assessed at all. Again we find that this discrepancy should not be remedied by injunction against the assessment and collection of the appellants’ taxes. It would appear that mandamus under Ark. Stat. Ann. § 84-478 (Repl. 1960) rather than injunction would be the most appropriate remedy.

The appellants next contend that there was no valid equalization board in Washington County in 1971 because the board did not consist of nine members as required by law, and? the action of the purported board was. entirely void. Under Ark. Stat. Ann. § 84-702 (Repl. 1960) counties having a population ot less than 75,000, according to the latest federal census, are required to have three members of an equalization board to be appointed for three year staggered terms, the appointments to be made during the month of May of each odd number year. Counties having a population in excess of 75,000 are required to have nine members on the equalization board. The Washington County Equalization Board consisting of three members was appointed under this statute and was so serving in 1971. It appears that by the 1970 federal census Washington County became eligible for nine members on its equalization board, but it is apparent from the testimony in the record that the county judge encountered considerable difficulty in determining whether Washington County had in fact exceeded 75,000 population under the 1970 census. We are of the opinion that the exact date the county judge had notice of the county’s eligibility for a nine man board is immaterial to the question involved, because we agree with the chancellor that in any event, the three member board was a de facto equalization board and its actions were not void.

As already stated, the equalization project in Washington County was commenced in 1968 and was a continuing thing. Certainly it would be reasonable to assume that the project could be completed sooner, and perhaps at less expense, with an additional six members added to the board, but the right and requirement to have a nine member board should not, and does not, nullify the work of the three member board under the circumstances of this case. See Pennington v. Oliver, 245 Ark. 251, 431 S.W. 2d 843; Gilmore v. Lawrence County, Ark., 246 Ark. 614, 439 S.W. 2d 643.

The appellants next contend that the action of the equalization board was not an equalization of taxes but was simply an upward re-evaluation for tax purposes and the board thereby exceeded its authority. We find no merit in this contention.

Many of the appellants testified in the case at bar but we deem it unnecessary to set out their testimony. According to the testimony of each of them, their property was originally assessed far below 20% of its true market value. The record further indicates that in equalizing the assessments in Washington Cunty for 1971, the equalization board lowered approximately 28% of the assessed values while the appellants’ properties fell within the approximately 72% of the assessments which were increased. It is perfectly clear from the record, that many of the property owners whose assessments were raised had owned their property for many years and their assessments had not kept pace with the increase in market values, whereas other property recently sold and purchased was assessed on the market values as reflected by the transfer records. It is apparent that this situation resulted in the lowering of some assessment values while others were raised.

The appellants next contend that the action of the county judge in changing property assessments was wholly without lawful authority and completely void. In this connection the county judge lowered the assessment values on all the property involved under this assignment and we agree with the chancellor that the appellants are in no position to complain of the county judge’s action under the petition they filed for an injunction against the assessment and collection of taxes in this case. It appears from the record on this contention, that when the equalization board had completed its work for the year and had adjourned at the end of its allotted period of tíme, there were many complaints, and requests for hearings, that had been filed with the equalization board and which the board was unable to hear and consider within its allotted time. The record indicates that the county judge also received separate complaints from some of the protesting appellants and that he simply mailed out letters to approximately 3,000 taxpayers advising them that their property had been reappraised, utilizing standards by the Tax Division of the Department of Coordination of the State of Arkansas, and each statement concluding as follows:

. “I have reviewed this reappraisal and in conformance with the law, have adjusted the 1971 assessed value of this property as follows. . . .”

In each of these instances, it appears that the assessed value as fixed by the equalization board was lowered. Ark. Stat. Ann. § 84-708 (Repl. 1960) provides the procedure to be followed by a property owner for adjustment of assessment as changed by the equalization board, and the procedure is by appeal to the county court, and not by letter to the county judge. This statute contains a savings clause for the benefit of property owners who have not had an opportunity to appear before the equalization board in exhausting their administrative remedy before the board. We agree with the chancellor that the county judge had no authority to lower the assessments in the manner indicated in the record before us, but we also agree with the chancellor that such void action on the part of the county judge is not grounds for injunction against the collection of taxes properly assessed.

We conclude, therefore, that the decree of the chancellor should be affirmed.

Affirmed.

Fogleman, J., not participating.


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Mack SNEED v. COLSON CORPORATION
    73-48
    497 S.W. 2d 673
    Opinion delivered July 23, 1973
    [Rehearing denied August 27, 1973.]

      Erwin, Bowie ir Boyce, for appellant.

      Frierson, Walker, Snellgrove ér Laser, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which Mack Sneed, the injured workman, was awarded compensation benefits by the Workmen’s Compensation Commission. The circuit court reversed the Commission and the claimant Sneed is the appellant here.

The facts appear as follows: The appellant Sneed was 42 years of age and had been employed as a punch press operator by the respondent-appellee-employer for a period of six years, when on November 19, 1970, he sustained an injury to his right hand when two of his fingers were caught in the punch press. The initial injury resulted in partial amputation of the fingers on the right hand for which compensation benefits were fully paid without controversion. Mr. Sneed returned to work for the same employer in the latter part of January, 1971, but was forced to cease work again in July, 1971, because of pain he was experiencing in his neck, shoulders and arms. He later had surgery on his cervical spine and was off work from July 17 to November 29, 1971.

Mr. Sneed filed claim with the Workmen’s Compensation Commission for his additional disability because of the neck condition and a hearing was had thereon before a Referee on February 3, 1972. Mr. Sneed was awarded compensation benefits from July 17, 1971, until November 29, 1971, and was awarded a five per cent permanent partial disability to the body as a whole. Upon review of the Referee’s award, the full Commission made the same award and upon appeal to the circuit court the court found no substantial evidence in the record to sustain the award and reversed the order of the Commission.

The question before the Commission was whether or not the condition suffered by Mr. Sneed in the cervical area of his spine was a result of his accident on November 19, 1970, when his hand was injured. The Commission found that it was so related and awarded compensation benefits accordingly. The Commission was required to make its determination on the preponderance of the evidence with reasonable doubts resolved in favor of the claimant. On appeal to the circuit court and to this court the only question for determination is whether or not there was any substantial evidence to sustain the Commission’s finding and we, of course, in examining the evidence for such determination, must view it together with all reasonable inferences deducible therefrom, in the light most favorable to the Commission’s finding the same as in a jury verdict. Northwestern Nat’l Ins. Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322; Warwick Electronics v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792.

Turning now to the pertinent evidence in the case at bar, Mr. Sneed testified that he had been working as a punch press operator for the appellee Colson Corporation for approximately six years and had never had any difficulty with his neck, arms and shoulders, and had never had any difficulty performing the duties of his employment until his injury on November 19, 1970. His testimony in this regard is not disputed and is in fact substantiated by his supervisor as well as fellow-employees.

Mr. Sneed testified that a safety device in the form of a harness was attached to his arm at the time of his injury and that this mechanical device pulls, or jerks, his hand back from the machine as the press comes down on the materials being processed. It appears that this safety device is synchronized with the operation of the machine but in Mr. Sneed’s case his fingers were caught in the machine and the safety device continued to jerk his arm while his hand was caught in the machine resulting in the ends of his fingers being mashed off and tendons being pulled out of his hand and wrist.

Mr. Sneed testified that he jerked his neck in one direction and his shoulders in another in attempting to release himself from the machine and the safety device, and that his neck and arms bothered him and grew progressively worse from the date of the accident up until he was forced to quit work because of it in July, 1971. Several of his fellow-employees testified as to his complaints of pain in his neck and arms after he returned to work following the accident and the termination of the healing period relating to his hand.

Mr. Sneed said he made several requests of his employer for examination by a company doctor, Dr. Mahon, but that his employer refused his requests. He testified that when he finally was forced to cease work, he went to his family doctor, Dr. Robinette; that Dr. Robinette recommended he stay off from work on sick leave but that when he presented Dr. Robinette’s written recommendations to his employer and requested that his compensation payments and medical treatment be reinstated, his request was denied. He said he went to Dr. Robinette two or three times during which x-rays and other tests were made and he was referred to Dr. Grant, an orthopedic surgeon in Memphis. He said he was under treatment by Dr. Grant until sometime around November 25th or 29th, during which time Dr. Grant performed surgery on his cervical spine. He said he later was seen by Dr. Austin Grimes in Little Rock. He said that following the surgery on his cervical spine he was able to return to work on November 29,1971; that he had been off from work because of his cervical condition from July 17, 1971, until November 29, 1971. He testified he was still having difficulty with his neck and arms.

Dr. Larry Mahon, an orthopedic surgeon, examined and treated Mr. Sneed immediately following the injury to his hand on November 19, 1970. He said that the last tíme he saw Mr. Sneed in reference to his hand was on January 27, 1971. He said that Mr. Sneed made no complaints to him about difficulty with his arms, except he did complain considerably with his right forearm where one of the large finger tendons had been avulsed from the remainder of the finger and wrist. Dr. Mahon was advised that subsequent examinations and surgery revealed a “bar formation” at C-6 on the left with a central disc immediately beneath the egress of the nerve at that level and was questioned in this connection. He defined “bar formation” as a “bridge of osteoarthritis — we frequently describe spurring in the cervical and lumbar spines.” He said that “bar formation” is not normally traumatic in origin but is an osteoarthritic process secondary to normal aging process. He said it was not unusual for a bar formation to normally produce symptoms of pain in the neck and arms and that this would be true without regard to whether there had or had not been trauma. Dr. Mahon then testified that he examined Mr. Sneed in his office at the request of the attorney for the appellee-employer on December 2, 1971, and found the condition he would normally expect following surgery such as Mr. Sneed had undergone on the cervical spine. He said that in his opinion Mr. Sneed had a permanent partial disability of no greater than five per cent to the body as a whole because of the disability of the cervical spine.

On cross-examination Dr. Mahon said that many people suffered osteoarthritic conditions in the cervical spihe such as he found in Mr. Sneed without having any symptoms of pain. He said that in many cases when a person with such condition suffers trauma to the area, the condition may become symptomatic and that such condition may be aggravated by a jerking type of injury to the neck and back. Then Dr. Mahon testified as follows:

“Q. And although I believe you stated this was not related to the injury to the hand — if you were given the background which you have, I think, have now been given — if you were given the background of a jerking type trauma to the neck and back, would not this be consistent with the injury that you have now found to exist in the cervical spine and resulting from this bar formation?
A. That is correct.”

In Dr. Mahon’s report of December 17, 1971, addressed to the respondent-appellee’s claims representative pertaining to his examination of Mr. Sneed on December 2, 1971, he states as follows:

“Following the last narrative report to you on February 12, 1971, please be advised that I did see Mr. Sneed back in my office on December 2, 1971, for further evaluation. His injured right hand, with the amputation of the two fingers, was doing satisfactroily and in my opinion there is still the same decree of disability existing as I stated in my earlier correspondence. At the time of this examination, Mr. Sneed stated that he actually had been having difficulty with his neck and left arm from the onset of his original injury to his hand but did not mention any complaints referrable to that area to me during that period of time, from 11/17/70 to 1/27/71. The history I obtained from Mr. Sneed from his office visit on 12/2/71, he stated that he had jerked his neck at the time of his original injury to his hand and that he had difficulty with the area since that time. He did have a cervical laminectomy performed by Dr. Grant and he states that he has improved since the laminectomy although he still complains of parethesia’s in the left arm and stiffness and soreness iri his neck. He does have legitimate sounding complaints for a post laminectomy status. Apparently Mr. Sneed, according to the office notes of Dr. Grant which accompanied him, did have a discogenic problem in his cervical spine, however, a ruptured cervical disc was not removed because of technical difficulties.
I am unable to state whether or not Mr. Sneed’s alleged cervical spine injury is a direct result of the original injury in question at this time although throughout his treatment by myself, he did not complain of any symptomatology referrable to his neck or his left arm. His complaints were always involving the right upper extremity. It is, however, theoretically possible that at the time of the original injury sufficient force could have been exerted on his cervical spine through a jerking mechanism to rupture a cervical disc. I feel that Mr. Sneed’s present complaints with his cervical spine are probably on a legitimate basis from cervical arthrosis from the cervical disc problem which he had plus the necessary ensuing surgery. However, I believe the degree of permenent partial disability to his body as a whole as a result of the cervical spine problem is no greater than 5%. As I just mentioned, however, I can not state unequivocally that there is a causal relationship between the original injury and the cervical spine problem. However, if one assumes his history is accurate then and it would be theoretically possible..”

Dr. Grant’s report dated July 23, 1971, pertaining to Mr. Sneed’s surgery in the Methodist Hospital in Memphis relates in part as follows:

“Admitted with history of having injured his neck and arm while at work. He has had pain in both upper extremities and recent pain in the left upper extremity is worse with associated numbness of the index finger and thumb.
Patient had EMG which revealed radiculopathy of C-7 on the left. Cervical • myelogram revealed defect at C-6 level on the left and also a defect at the C-5 level on the right. Patient was carried to surgery (after a trial of cervical traction failed to alleviate his symptoms) and a cervical laminectomy was performed. Findings at surgery revealed a bar formation at C-6 on the left with a central disc immediately beneath the egress of the nerve root at that level. The disc could not be removed due to the swelling of the nerve root on that side which permitted traction of the root. However, a foraminotomy was performed over the root and post-op the patient was improved.”

A report of Dr. Austin Grimes to the Little Rock Orthopedic Clinic dated June 30, 1971, relates as follows:

“The above 41 year old white male was seen in the office on June 16, 1971, for purposes of evaluation of neck pain, right arm pain and pain into his right hand. He states he caught his right hand in a punch press and lost the end of his long and ring fingers. He has also pulled out a tendon around his wrist and forearm and jerked his neck and has been having pain in his neck since that time. He also has pain in his left arm now, for the past few months. This is especially noted when he has been working. He is having increasing difficulty. He gets a sleepy feeling in his thumb and index finger of the left hand and pain in the left wrist as well. He has pain in the dorsum of the left hand along the radial nerve distribution of sensation. He states he also has a fullness occurring over the right wrist at the point of insertion of the tendons which he thought were pulled out. He thought the left arm pain was heart pain and was seen by Dr. Hickman in Jonesboro and has not been to Doctor Mahon, the treating doctor, for his hand or his neck pain since the initial injury and initial immediate post operative care. He was scheduled to see Doctor Mahon, but has not been back to him as yet. His past history is significant. He denies any difficulty with his arm, hand or neck prior to the accident.
* * #
X-rays of the cervical spine, AP, oblique and lateral of the right hand, reveal some C5-6 narrowing as well as some encroachment of the left oblique view of the nerve root level of C3-4 and on the right oblique there is C5-6 foramenal encroachment. ...”

The appellee contends that expert medical testimony is essential to establish causal relationship of the injury to the cervical condition suffered by Mr. Sneed and seems to argue that the Commission must rely on medical evidence only for such purpose. The appellee cites in support of this premise W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W. 2d 68, but in Shanhouse we did not go as far as the appellee seems to conclude. In the Shanhouse case the question was whether or not the claimant was suffering from empyema resulting from effusion and adhesions in the plural region caused by heavy lifting in the course of her employment. In that case the Commission totally ignored the testimony of the medical experts and rendered its opinion on its own independent study of the medical literature on the subject. We certainly did not approve such procedure in Shanhouse but neither did we say that expert medical testimony is essential to establish causal relationship between an industrial injury and every resulting condition that may arise therefrom.

Certainly we recognize that expert medical opinion and evaluation would be desirable and perhaps beneficial to the Commission in most any type of case where physical injury is involved. Indeed it is just common sense that medical evidence may be essential to a determination of causal relation between some types of injury and some types of physical conditions following such injuries. We also recognize that expert medical testimony is expensive to an injured workman and is not essential to the exclusion of all other evidence in establishing a causal relation between some types of injury and some types of conditions following such injuries.

We disagree with the trial court’s determination that there was no substantial evidence to sustain the finding of the Commission in this case. The mechanics and history of the accident in which Mr. Sneed was injured were firmly established by all the evidence on the subject. As we read Dr. Mahon’s testimony, he does not say there was no relation between the accident and Mr. Sneed’s admitted disability from the condition in his cervical spine. Dr. Mahon recognizes his inability to state unequivocally that there was a causal relationship between Mr. Sneed’s original injury and his spinal problem, but he does say that if the history is accurate, then the relationship would be possible. Dr. Mahon further states:

“Apparently Mr. Sneed, according to the office notes of Dr. Grant which accompanied him, did have a discogenic problem in his cervical spine, however, a ruptured cervical disc was not removed because of technical difficulties. * * * It is, however, theoretically possible that at the time of the original injury sufficient force could have been exerted on his cervical spine through a jerking mechanism to rupture a cervical disc. I feel that Mr. Sneed’s present complaints with his cervical spine are probably on a legitimate basis from cervical arthrosis from the cervical disc problem which he had plus the necessary ensuing surgery.” (Emphasis added).

As we view the record in this case, there is no contention that the “bar formation at C-6” was sustained in the accident on November 19, 1970, but as we read the record, the “bar formation” as such, is not causing the disability. As we read and interpret the medical reports, the bar formation simply added to the “technical problem” which prevented the removal of the ruptured disc.

“Findings at surgery revealed a bar formation at C-6 on the left with a central disc immediately beneath the egress of the nerve root at that level. The disc could not be removed due to the swelling of the nerve root on that side which permitted traction of the root.”

We conclude that the judgment of the trial court should be reversed and the order and award of the Commission should be reinstated and affirmed.

The judgment is reversed.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I dissent because I think this decision licenses the Workmen’s Compensation Commission to make awards based on speculation as to causes of disability. It seems evident, without necessity for elaboration, that a diagnosis of cervical radiculopathy, due to bar formation and soft disc at C-6 on left, requires explanation of cause, effect and symptoms by medical experts. This was the diagnosis by Dr. Grant of the Neurosurgical Group — the only physician who was in a position to state positively what caused the pain and discomfort suffered by the claimant. Dr. Grant did not testify but only filed a report. He did not express any opinion as to the cause of Sneed’s condition.As a matter of fact, the only physician who did was Dr. Larry Mahon, Sneed’s treating physician at the time of the injury. Dr. Mahon said that Sneed did not advise him of any symptoms of his disabling condition during the course of his two-month treatment and expressed the opinion that these symptoms should have appeared during that time if they were attributable to the injury. This doctor testified after having examined Sneed on December 2, 1971, and having had the benefit of other medical reports. He estimated that Sneed had a permanent partial disability of 5% because of his back condition. When asked to state his opinion as to whether or not this disability was attributable to the original injury, Dr. Mahon replied:

This was in no way related to the initial injury to his hand — this was an estimate of permanent partial disability to this cervical spine at the time that I saw and examined him on 12/2/71 taking in account the complaints that he had at that time.

Dr. Mahon expressed the opinion that Sneed’s difficulty was attributable to a bar formation discovered through Dr. Grant’s surgery. He stated that this condition was not normally attributable to trauma, but that it is an osteoarthritic process secondary to the normal aging process and that it is not unusual for it to produce symptoms of pain in the neck and arms. He further stated that this bar formation had a tendency to produce the same type of symptoms. In earlier reports, which were made exhibits to his testimony, Dr. Mahon had stated that if one assumed the history given by Sneed after his treatment was accurate, it would be theoretically possible that sufficient force had been exerted on the cervical spine at the time of the original injury to rupture a cervical disc.

Thus, in considering a disability because of a condition in a human spine, one of the most intricate parts of the complicated human machine, the only medical evidence of causation is the admission of a theoretical possibility. Certainly,the relationship of cause and effect in this case cannot be said to be within the realm of common knowledge. The answer to the question is, beyond a shadow of doubt, peculiarly within the realm of medical science. There is evidence of another apparent cause — a normal aging process. While the medical expertise of the commission is presumptively superior to that of members of the judiciary, still I do not see how it could have reached the conclusion it did without resort to speculation and conjecture.

I will not repeat all that I have had to say on this subject in dissent in Exxon Corporation v. Fleming, 255 Ark. 798, 489 S.W. 2d 766; Kearby v. Yarbrough Gin Co., 248 Ark. 1096, 455 S.W. 2d 912; and Bradley County v. Adams, 243 Ark. 487, 420 S.W. 2d 900, but much of it is at least equally applicable here.

I cannot understand the casual treatment given our decision in W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W.2d 68. This is what we said in that case:

Whether appellee had empyema with effusion in 1950, whether said disease left pleural adhesions, whether lifting and arduous physical labor would cause said adhesions to weep thereby creating a base in which empyema could develop, whether the labor performed by appellee either caused or aggravated the empyema, and whether appellee would or woüld not have collapsed had she continued to perform the duties of the first few years of her employment, are inquiries addressed peculiarly to the realm of scientific knowledge, and is not the sort of determination the Commission could make independently and in defiance of all the medical testimony in the record. Larson’s Workmen’s Compensation, Vol. 2, 1952, Sec. 79.54. Hence, the Commission’s finding that appellee’s work did not bring about her condition, and in accepting its own independent medical conclusions in defiance of the testimony of Drs. Lile, Gowen and Crenshaw was erroneous, and must be, and is, disapproved.

Presently, the section cited from Larson in that opinion reads:

These considerations apply with particular force to the issue of disability. As has been stressed at length earlier, disability is not a purely medical question: It is a hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get, suitable work. Similarly, the compensation concept of disfigurement goes far beyond a mere objective physical condition, and is therefore a particularly appropriate subject for independent commission judgment that might be at variance with medical opinion.
Since these are the reasons for the rule relaxing the necessity for medical testimony, they should set the boundaries of the rule; in other words, reliance on lay testimony and administrative expertise is not justified when the medical question is no longer an uncomplicated one and carries the fact finders into realms which are properly within the province of medical experts.

Later, Professor Larson made this comment in 2 Workmen’s Compensation Law 304, § 79.59 (1969):

* * * The increasing tendency to accept awards unsupported by medical testimony should not be allowed to obscure the basic necessity of establishing medical causation by expert testimony in all but the simple and routine cases — and even in these cases such evidence is highly desirable and is part of any well-prepared presentation.

Perhaps it is too late to reverse the trend toward judicial conversion of workmen’s compensation into employee’s health insurance. I cannot help objecting, because the question whether this should be done is one of public policy and, if done, it should be accomplished by other means.

I would affirm the judgment.

I am authorized to state that Mr. Justice Brown joins in this dissent.


author: J. Fred Jones, Justice.

text:
    Florence Adams GRANT v. Richard L. GRANT
    73-88
    497 S.W. 2d 255
    Opinion delivered July 23, 1973

      Smith, Williams, Friday, Eldredge if Clark, by: Robert V. Light, for appellant.

      Haley, Young, Bogará & Gitchel, for appellee/cross appellant.
   J. Fred Jones, Justice.

Florence Adams Grant was awarded a divorce decree upon her complaint against Richard L. Grant. She was awarded the custody of their two minor children two and six years of age and now appeals from that portion of the decree which awarded $100 per week for child support, $250 per month alimony, and failed to award her one-third of the stock the appellee owns in the two corporations by whom he is employed. Mrs. Grant contends that the chancellor’s award of alimony and child support is grossly insufficient and against the clear preponderance of the evidence and that, the chancellor erred in refusing to award her one-third interest in defendant’s corporate stock as required by Ark. Stat. Ann. § 34-1214 (Repl. 1962).

The appellee Richard L. Grant cross-appeals from that portion of the decree which awarded to the appellant’s attorney a fee in the amóunt of $3,000 and costs in the amount of $332.66 incurred in the prosecution of the action.

Mr. and Mrs. Grant met each other in 1961 when they were students at the University of Alabama and were married in 1963 immediately prior to Mr. Grant’s graduation with a degree in business administration and Mrs. Grant’s graduation with a degree in education. Following their marriage, Mr. Grant served three and one-half years in the Navy and Mrs. Grant taught school. Following his discharge from the Navy, Mr. Grant became employed by Rock City Packing Company in Georgia and in 1968 the Grants moved to Harrison, Arkansas, where Mr. Grant was manager of a Rock City Packing Company plant. Mr. Grant terminated his employment with Rock City at its Harrison plant and obtained employment with Pace Industries in Harrison. He acquired five per cent of the stock in Pace Industries and Mr. James Franklin Keenan owned the other ninety-five per cent. Upon moving from Harrison to Little Rock in 1970, Mr. Grant went to work for Inco Corporation which was affiliated with Pace. Industries. He procured five per cent of the stock in Inco and Mr. Keenan also owned the remaining 95% of the stock in that corporation.

Mr. and Mrs. Grant as well as Mr. Keenan testified at the trial. It is clear from the evidence that Mr. and Mrs. Grant’s difficulties multiplied rapidly after Mr. Grant started work for Inco Corporation. The substance of the testimony is that Mr. Grant was paid a salary of $350 per week working for Inco, and was also paid an additional $125 per week as pocket expense money while on company business. It appears that prior to the separation and divorce, Mr. Grant regularly deposited his weekly pay check of $350 in their joint bank account. It also appears that Mrs. Grant regularly drew on this amount for household expenses, while Mr. Grant traveled extensively over the United States and in Europe on a practically unlimited company expense account. The record indicates that Mr. Grant used his expense account rather lavishly in entertaining prospective customers for aluminum die castings, which appear to be the principal product of Inco and Pace. It is apparent from the evidence in the record that Mr. Grant’s business contacts were primarily with executives of large corporations having need lor Inco’s product. The record is replete, however, with evidence, including Mr. Grant’s own admissions, that his expense account contacts were not entirely confined to business executives but also included female secretaries, air stewardesses and others with whom his admitted contacts could hardly be classified as company business. Be that as it may, we are concerned here with Mr. Grant’s property, his personal income and ability to pay, as well as Mrs. Grant’s needs for the support of herself and their two children.

Mr. Grant and Mr. Keenan testified that when Mr. Grant first went to work for Inco nothing was withheld from his salary, but that later Inco was required to withhold income tax and social security which reduced Mr. Grant’s actual take home pay to $260 per week, which together with the $125 personal expense money amounted to an income of $385 per week, which on a four week monthly basis would amount to $1,540 per month. Under the chancellor’s award, Mrs. Grant is to receive $100 per week for the support of the children and $250 per month in alimony for her own support, making a total of approximately $650 per month. Of course the child support is subject to change with changing conditions. In addition to the money allotment awarded in the decree, the chancellor decreed that Mr. Grant should pay all medical, hospital, dental and related expenses reasonably incurred for the care of the children. We are unable to say that the chancellor’s award of alimony and child support is grossly insufficient and against the preponderance of the evidence in this case, and we are unable to say the chancellor abused his discretion in making the award.

As to appellant’s second point, Mr. Grant testified that he paid $10,000 for his five per cent interest in the stock of Pace Industries. He said he borrowed the money from Mr. Keenan and still owes $7,600 on the transaction. This testimony is not contradicted but is confirmed by Mr. Keenan and Mr. Bob Gaddy, certified public accountant who handles accounts for Inco Corporation and Pace Industries. Mr. Gaddy testified that the book value of Mr. Grant’s five per cent equity interest in Inco is $448.75 and that the book value of his five per cent equity interest in Pace Industries is $8,098.75.

It is apparent from the record that Mr. and Mrs. Grant sold their equity in their home in Harrison and that there is still a balance of $2,500 owed to them on this property. The chancellor awarded one-half of this amount to Mrs. Grant and one-half to Mr. Grant. The evidence also indicates that following their separation Mrs. Grant purchased a home in Florida near her parents and that Mr. Grant paid approximately $2,000 in moving Mrs. Grant and the children from Little Rock to Florida.

It appears that Mr. Grant purchased a 1971 Porsche automobile and took title in his name but that the automobile was actually paid for by Inco and belongs to the corporation. Mrs. Grant was awarded the household furniture and a 1968 Oldsmobile automobile. According to accountant Gaddy’s testimony, Mr. Grant owes Inco the sum of $6,530.92 for borrowed money and owes to Pace the sum of $4,900. According to Mr. Grant’s testimony, they sold their home in Little Rock following their separation and Mr. Grant gave Mrs. Grant the proceeds of the sale of their equity in the sum of $2,500 with which to make the downpayment on the home she purchased in Florida, and also gave her an additional $2,900 for the 20% downpayment on the home in Florida.

We conclude, therefore, from the evidence before us, that the chancellor did not err in refusing to award Mrs. Grant one-third of Mr. Grant’s five per cent of the common stock in Inco and. Pace because it is apparent that Mr. Grant’s interest in the Oldsmobile automobile, thé household furniture and the proceeds from the sale of the Little Rock property, together with the cash he paid to Mrs. Grant in connection with her purchase of a home in Florida, exceeded one-third of the value of his net interest in these closely held corporations, so we conclude that the chancellor’s decree should be affirmed.

As to the cross-appeal, it would appear that the $3,000 attorney’s fee is a substantial fee for what turned out to be an ordinary divorce case, but it is noted that a detective agency was employed for the sum of $665 for the purpose, as Mrs. Grant put it: “To find out what Mr. Grant’s activities of a poor nature consist of.” Accordiftg to Mr. Grant’s own testimony and that of his witness Mr. Keenan, most of Mr. Grant’s business contacts were with busy executives and corporate presidents in this country and Europe, and according to the appellant he “went first class.” It is also apparent that the appellant’s social and nonbusiness activities were conducted over the same geographical area as his business activities and that he also “went first class” in connection with these activities. It is only reasonable to assume that it would be necessary for Mrs. Grant’s attorneys to travel over a wide area in investigating Mr. Grant’s nonbusiness activities, and that it would be necessary for them also to go “first class” in investigating her grounds for divorce against Mr. Grant. We have no way of knowing that Mr. Grant’s frank admissions to adultery as primary grounds for divorce did not result from the work done by Mrs. Grant’s attorneys. We conclude that the decree should be affirmed on both the direct and cross-appeals.

Affirmed.


text:
    Alvin MARTIN v. STATE of Arkansas
    CR 73-55
    497 S.W. 2d 268
    Opinion delivered July 23, 1973

      Kirk Patton and G. William Lavender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Alvin Martin was convicted of assault with intent to rape in the Miller County Circuit Court and was sentenced to ten years in the penitentiary. On his appeal to this court he contends that the trial court committed reversible error when the trial judge went to the jury room and instructed the jury during its deliberation. The appellant cites Ark. Stat. Ann. § 43-2139 (Repl. 1964) as prescribing the proper method of instructing a jury after it enters the jury room for deliberation, and argues that under our decision in Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451, this court may review error apparent on the face of the record even though no objection was made at the time of the trial.

After both sides had rested in the case at bar, and after the jury was instructed by the court, the record appears as follows:

“Thereupon, the jury retired to consider of its verdict, and during the course of its deliberations, sent word by the bailiff that they wished to ask the court a question.
Thereupon, by agreement, the court and the attorneys entered the jury room, and the following proceedings were had and done:
BY THE COURT:. Members of the jury, I am told that you have a question that you care to ask.
BY MEMBER OF JURY: We wanted to ask about the three to twenty-one years being the severity of the sentence. I think some of the jurors would like to know if it should be our consideration as to the parole policy, should that come into our consideration in deciding on a sentence — should we take that into account?
BY THE COURT: I know the answer, but let me consult with the attorneys out of your hearing.
Thereupon, after consultation with the attorneys out of the hearing of the jury, the court and attorneys returned to the jury room, and the court instructed the jury as follows:
BY THE COURT: Members of the jury, in answer to the first part of your question, about the severity of the penalty, your primary function is to determine first and primarily the guilt or innocence of the defendant. If you determine that the defendant is innocent, then vou have concluded your duties. If you conclude that the defendant is guilty beyond a reasonable doubt, then it would be your duty , to set punishment at a'determinate sentence. By that I mean for a set number of years in any range, not less than three nor more than twenty-one.
Some states have what is known as an indeterminate sentence where a defendant is given a sentence from blank to blank. We in Arkansas have what is known as a determinate sentence, and I hesitate to cite numbers because I don’t want you to think I am trying to influence you in any wise, but it should be a specific number of years if you determine the defendant is guilty.
Now, as to the second part of your question, it is improper for the court to answer this inquiry, as an answer might well constitute reversible error. The jury need not concern itself with this matter. The control of the parole system is committed by law to the Legislative and Executive branches of the government, and that the jury, if reaching a verdict of guilty, has only the duty of imposing such punishment as may be considered, under the court’s previous instructions, to be appropriate. Any other questions?
Negative Response.
BY MEMBER OF THE JURY: On the number of years, does that have to be unanimous, also?
BY THE COURT: Yes, sir, your verdict has to be unanimous. I will say this to you: If you have another question in that regard after further deliberations, I will answer it.”

Ark. Stat. Ann. § 43-2139 (Repl. 1964) above referred to, reads as follows:

“After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.”

In Wacaster v. State, 172 Ark. 983, 291 S.W. 85, after the jury had retired to consider the verdict, an additional instruction was given to the jury foreman by the trial judge in the hall of the court house outside the courtroom and outside the jury room and away from the presence of the defendant and his attorney. The question asked by the jury foreman pertained to parole and as a part of the instruction, the trial judge testified that he told the jury foreman to . . just fix the punishment, whatever it was, or what they thought should be fixed.” We reversed in that case because the jury might have considered the court’s remarks as the court’s opinion on the weight of the testimony and the guilt or innocence of the defendant, but we did point out in Wacaster that the provisions of § 43-2139 (then § 3192, Crawford & Moses’ Digest) are mandatory.

However, in Durham v. State, 179 Ark. 507, 16 S.W. 2d 991, the trial judge, together with the prosecuting attorney and the defendant’s attorney, went into the jury room at the request of the jury and instructed the jury as to its power to sentence the defendant to the reform school instead of the penitentiary. Error was assigned in the Durham case because the defendant was not present and it was the mandatory duty of the trial judge to bring the jury into the courtroom and instruct it in the presence of the defendant under the provisions of § 43-2139, supra. We held in Durham that no prejudice was shown because the attorney for the defendant was present and made no objection to the procedure. .

In Boone v. State, 230 Ark. 821, 327 S.W. 2d 87, the trial judge, with the consent of counsel, went to the jury room and clarified the instructions at the request of the jury. In that case we said:

“It thus appears undisputed that appellant agreed to the court’s entering the jury room, as indicated, and he points to no evidence in the record tending to show that anything was said or done prejudicial to the rights of appellant.”

In the very recent case of Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86, after the jury had retired to consider its verdict, the jury foreman returned to the courtroom and made inquiry as to eligibility for parole in the event of guilty verdict and sentence for years or for life. The trial judge proceeded to answer the jury foreman’s questions and in that case we pointed out that the trial court in such instance should reply, in effect, “that it is improper for the court to answer the inquiry, and an answer might well constitute reversible error; that the jury need not concern itself with the matter; that the control of the parole system is committed by law to the legislative and executive branches of the government, and, that the jury, if reaching a verdict of guilty, has only the duty of imposing such punishment as may be considered, under the court’s previous instructions, to be appropriate.” The trial court in. the case at bar correctly followed our admonition as to questions pertaining to parole laid down in Andrews. In Andrews, however, we also reviewed the conflict in the cases where the foreman of a jury or a single juror returns to .the courtroom for instruction without the entire jury being present, and in this connection in Andrews we reviewed the cases going back to Wacaster v. State, supra, and in Andrews we said:

“It is apparent that the cases are not harmonious and the holdings lack consistency though the more recent cases hold such action by the trial court to constitute error. * * * Accordingly, we have reached the conclusion that the statute, Ark. Stat. Ann. § 43-2139 (Repl. 1964), should be strictly followed. In Wacaster we did reverse because of the court’s conversation with the foreman, but in Aydelotte, though holding on the one hand that the provisions were mandatory, we proceeded to say, in effect, that the statute was not mandatory, for we affirmed even though the provisions were violated. We now repeat that following the statute is mandatory in the full meaning of the word, defined by The American Heritage Dictionary of the English Language as ‘Required as if by mandate; obligatory.’ Obligatory is then defined as ‘legally or morally constraining; binding * * * compulsory.’ ”

It is true that in Andrews, the instruction was given to the jury foreman in the courtroom under circumstances whereby it would he necessary for him to convey the instruction (by hearsay) to the other members of the jury, while in the case at bar, the only difference apparent on the face of the record, was the place in the court house where the jury received the additional instructions, but § 43-2139, supra, is plain and unambiguous and as already pointed out in our previous decisions, is mandatory and should be strictly construed.

We do not say that the mandatory provisions of this procedural statute can under no circumstances be waived, but we do say that such waivers and questions of waivers in previous cases seem to have created problems that outweighed the convenience of the juries involved. The procedure set out in the statute is not difficult to follow and places no burden at all on the trial court or attorneys, and places very little burden on the jury. It simply recognizes that the courtroom, where the trial is being conducted, is the proper place for the giving of all instructions to the jury in open court and where all the jury and anyone else interested, including the defendant, can hear the instructions in the context given. The defendant, as well as the public, is entitled to know what goes on in the courtroom, but they are not entitled to know what goes on in the jury room. We can think of many good reasons why a jury should receive all instructions in the public forum of the courtroom and we can think of no good reason why it should not. To strictly follow the simple procedure as set out in the statute, would avoid such difficulties that have arisen in the numerous cases between Wacaster v. State and Andrews v. State, supra.

The record in the case at bar does not reveal what conditions, if any, prevailed in the courtroom that caused the trial judge and the attorneys to agree to go to the jury room at the request of the jury for additional instructions. We agree with the state, however, that there is no evidence in the record that the appellant was prejudiced in this instance, and we agree with the state that the appellant’s attorney not only failed to object but affirmatively agreed to the procedure followed.

There is no question that many constitutional and procedural rights may be waived. Cox v. State, 240 Ark. 911, 405 S.W. 2d 937; Moore v. State, 241 Ark. 335, 407 S.W. 2d 744; Medley v. Stephens, 242 Ark. 215, 412 S.W. 2d 823; Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1; Durham v. State, supra.

There is no suggestion in the record before us, that the appellant was not in the courtroom and knew of his attorney’s agreement to go. with the state’s attorney and the trial judge to the jury room for settling the question on instructions, thus waiving the right to require that the jury be brought back into the courtroom for receiving the instructions as required by the statute. The judgment recites the appearance of appellant in person and by his attorneys at the beginning of the trial before the jury was selected, and the reporter’s transcript confirms this recitation. There is no question that the appellant was sitting at the counsel table during the trial when he was identified by the prosecutrix and other witnesses who testified. After the state had rested, the defendant was personally advised by the trial judge in the courtroom, in the absence of the jury, of his right to testify or to remain silent. Immediately after the jury verdict was returned, the court asked appellant to “come around,” and pronounced sentence after having received negative responses to his separate inquiries whether the defendant himself had anything to say prior to sentencing. After sentencing the trial judge inquired whether the appellant had any questions and the only response received was the appellant’s request that he have a day with his people. At the very conclusion of the entire proceeding, the trial court received an affirmative response from the appellant to the question “have the services of your two attorneys been satsifactory?”

We have held that an attorney’s authority to waive his client’s right to be present at every step of his trial would be presumed, in the absence of a showing to the contrary, when the question was not raised until after his trial had been concluded and he had been convicted. Nelson v. State, 190 Ark. 1027, 82 S.W. 2d 519. We conclude that the same rule should apply in this case, for there is nothing in the record to indicate that the appellant was not present and knew of his attorneys’ waiver of the statutory procedural requirement on - instructing the jury in this case. The propriety of the instructions given is not questioned at all. The court reporter recorded everything that occurred in the jury room while the judge and the attorneys were there, and there is no evidence whatever that the appellant’s rights were prejudiced in the slightest degree by the procedure followed in this case. We conclude, therefore, that the judgment of the trial court in this case should be affirmed. It is our hope, however, that in future cases the trial judges will recognize the risk of procedural error in entering the jury room for any purpose while the jury is in deliberation and will strictly apply and follow the provisions of § 43-2139, supra, even though the provisions of the statute may be waived.

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    Lyndale “Wimpy” WALKER v. STATE of Arkansas
    CR 73-64
    497 S.W. 2d 258
    Opinion delivered July 23, 1973

      Leonard C. Smead, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

In 1970 appellant was sentenced to a total of 15 years imprisonment on charges of burglary, grand larceny and escape. Thereafter, he filed a petition for postconviction relief alleging five grounds of error. The trial court denied his petition without an evidentiary hearing. On appeal we found merit only in his contention of insanity and reversed for an evidentiary hearing on that issue. Walker v. State, 251 Ark. 182, 471 S.W. 2d 536 (1971). After the evidentiary hearing the trial court, by written findings of fact and conclusions of law, denied appellant’s contention that he was suffering from a state of demented mental capacity and mentally unable to know and understand all that occurred during his trial as well as his subsequent pleas of guilty to the other alleged offenses. On appeal appellant, through his court appointed attorney, contends that he is entitled to “relief from sentence[s] imposed because of insanity at time of trial caused by duress against him.”

Appellant testified that he had received psychiatric treatment. He presented letters as exhibits from a psychiatrist that in 1961 he was diagnosed and treated by him for a brief time as “a simple schizophrenic” with poor prospect of improvement. Further, he was of a type that “is often known for drifting into law-breaking.” However, during the few months the psychiatrist had observed appellant, the appellant had made “slow but certain response.” Appellant later was incarcerated in the United States Disciplinary Barracks, Leavenworth, Kansas, on a charge of misappropriating government property. He said there he was treated by a psychiatrist for 14 months for a deficient mental condition. As to his 1970 trial and pleas, he testified to the effect that because of his diminished mental capacity accompanied by threats of long sentences and to prosecute his wife, he was in a “shock condition” to such an extent that it affected his mental capacity to deliberate as a witness and his willingness to enter pleas of guilty, to the remaining charges. He was represented by retained counsel.

On cross-examination, appellant admitted that he remembered something about being tried for breaking into a trailer house and stealing a television; that he had a jury trial and recalled the names of his lawyer, the prosecuting attorney, and the trial judge. Also, that in 1966 when he was convicted of a criminal offense, he was sent to the Arkansas State Hospital for a 30-day mental examination preceding his trial.

His wife testified that he took about 18 of her mild sedative or . tranquilizer tablets about two hours before his 1970 trial. She did not know what medical treatments he had experienced from local doctors and had never seen him take any medicine stronger than aspirin. She described him as a nervous and confused person. The tablets he took before the trial did. not seem to affect him other than “calm him down.” She did not know if he had ever discussed his mental condition with a doctor.

The state adduced evidence from the two officials the appellant said had coeiced him. The prosecuting attorney, who prosecuted the appellant, said that he had observed the appellant when he prosecuted and convicted him in 1966 and again in .1970. He described the defendant as being competent and “crazy like a fox.” Further, that to his knowledge the appellant was never threatened or abused in any manner by him or anyone else. The arresting officer testified that he was acquainted with the appellant and described him as being a very rational person who had not been subjected to any threats or duress. There was also testimony that the appellant persuaded one of the officers, to take him from the jail under the guise of locating some concealed articles and, during the fruitless search, he escaped. The state also produced a copy of a letter dated July 19, 1966, from the Arkansas State Hospital reflecting that appellant was committed for a 30-day mental examination and was found to be “without psychosis.”

We are of the view the evidence was amply sufficient to support the trial court’s finding that there was no merit in appellant’s contention that he was suffering from a state of demented mental capacity or subjected to duress during his trial and subsequent guilty pleas. To the same effect, see Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971). Therefore, in the case at bar, after a full canvass of the record, we find no infringement upon appellant’s constitutional rights.

Affirmed.


author: PER CURIAM

text:
    In The Matter of Client Security Fund
    73-91
    493 S.W. 2d 422
    April 30, 1973

      Henry Woods, James M. Moody, and W. J. Williams, Jr., for petitioners.
   PER CURIAM

It is hereby ordered that the Client Security Fund be created, to be administered by a special committee of the State Bar of Arkansas, for the purpose of protecting clients from losses caused by the dishonest conduct of members of the State Bar of Arkansas.

1. Committee appointed — quorum. The Court shall appoint a committee of five lawyers, one from each Congressional District and one from the State at large, to serve at the pleasure of the Court. The member first appointed from the First Congressional District shall serve a term of one year from the date of his appointment, the first member from the Second Dstrict, two years, the first member from the Third District, three years, the first member from the Fourth District, four years and the first member from the state at large, five years. The successors to the members first appointed shall be appointed for terms of five years each. The Committee shall select one of its members as chairman and another as secretary, and shall adopt rules governing its procedures, which rules shall be subject to approval by this Court. A majority shall constitute a quorum.

2. Authority to issue summonses and subpoenas— Disobedience thereof contempt of Court. The name of the Committee shall be “The Client Security Fund Committee” (hereinafter called the “Committee”). The Committee shall provide for its use a seal of such design as it may deem appropriate, and in the performance of duties imposed by the rules of this Court and by its own regulations in aid of the Court’s rules, shall have authority to issue summonses for any person or subpoena for any witness, directed to any sheriff or state police officer within the state, requiring the presence of any party or the attendance of any witness before it. Such process shall be issued under the seal of the Committee and signed by the Chairman or Secretary thereof. Disobedience of any summons or subpoena or refusal to testify shall be regarded as constructive contempt of the Supreme Court.

3. The Committee is authorized to consider claims for reimbursement of losses from defalcations occurring after the effective date of this Order, and caused by the dishonest conduct of a member of the State Bar of Arkansas, acting either as a lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which they are bonded or to the extent such losses are otherwise covered, provided such member has been disbarred or suspended from the practice of law, or has voluntarily resigned from the practice of law. However, before the Committee shall have jurisdiction to consider such claim, the matter must have been specifically referred to it by the Committee on Professional Conduct. At that time the Executive Director of the Committee on Professional Conduct shall prepare a summary of the evidence indicating the amount of loss due to the dishonesty of the lawyer. In the event a claim is filed against the fund, the Committee shall proceed to determine the true amount of the loss and whether it should be paid. No claim shall be accepted or recognized until the matter has been certified to the Client Security Fund Committee by the Committee on Professional Conduct. The Committee shall be authorized and empowered to admit or reject such claims in whole or in part to the extent that funds are available to it, and the Committee shall have complete discretion in determining the order and manner of payment of claims. No claim shall be allowed for an amount in excess of $5,000.00. All reimbursements shall be a matter of grace and not of right and no client or member of the public shall have any right in the Client Security Fund as third party beneficiary or otherwise. No attorney shall be compensated for prosecuting a claim against the Fund.

4. Expenses of Committee provided for. From the fund created, members of the Committee shall be entitled to receive their actual necessary travel and hotel expenses, reimbursement for postage, stationery, communication, and other incidental expenses, including stenographic bills and court costs chargeable against them. All such items shall be paid by the Clerk of this Court by check on said Fund, signed by the Clerk and countersigned by the Chief Justice. Accounts must be itemized and certified by the Chairman and Secretary of the Committee as true and correct.

5. The Committee may authorize payment from the Client Security Fund as provided herein. If the Committee finds, by a majority vote, that the claimant is entitled to payment from the fund, it may determine the amount of any payment to be made to the claimant from the fund. A report, approving payment of any claims, shall be signed by a majority of the Committee members, and filed with the Clerk of this Court. Upon receipt of the aforesaid report, the Clerk will issue check signed by the Clerk and countersigned by the Chief Justice for payment to the claimant from the Client Security Fund.

6. The Committee shall provide a full report of its activities at least yearly to this Court and it shall make such other report of its activities and give only such publicity to same as the Court may deem advisable.

7. This Court may at any time amend this Order or abolish the Committee. In the event of such abolition, all assets of the Fund shall be transferred to the Bar Rules and Examiners Fund, now being carried in an account entitled Bar of Arkansas.

8. Payment shall be made from the Fund only upon condition that the Fund receive a pro-tanto assignment from the claimant for such payment of the claimant’s rights against the lawyer involved, his personal representatives, his estate and assigns on condition that the Fund shall be entitled to reimbursement on such terms as the Committee may deem proper under the circumstances. Any sums collected by reason of such subrogation shall be for the sole benefit of the Fund and applied thereto.

9. The Client Security Fund shall be financed by voluntary contributions from members of the Arkansas Bar and by a transfer of an equal amount, not to exceed $10,000.00, from the surplus derived from the annual license fees of attorneys collected prior to January 1, 1972. Beginning with the year 1974, $2.00 of the annual license fee paid by each attorney to the Clerk of this Court shall be credited to the Client Security Fund until further Order of this Court. The Committee shall have available to it the services of the employed personnel of the Supreme Court Committee on Professional Conduct.

This order shall be effective on May 21 in the absence of showing of good cause why it should not become final.


text:
    In The Matter of Procedural Rules of the Supreme Court of Arkansas
    July 23, 1973
   PER CURIAM

Rule 8(c) of the Procedural Rules of this court is hereby amended to incorporate the per curiam order of this court with reference to typewritten briefs, entered November 3, 1969, so that said rule shall read as follows:

(c) Typewritten Briefs. — When typewrtten briefs are permitted, they shall be written on letter-size paper, i.e., 8!4 x 11, and shall be bound by stapling or other binding devices on the left margin. If staples are used for binders, and the brief exceeds forty (40) pages in length, it shall be divided into volumes of not more than forty (40) pages each. Attorneys for indigents in criminal cases shall file typewritten briefs unless the court directs otherwise.


text:
    Franklin RAY v. STATE of Arkansas
    CR 73-43
    491 S.W. 2d 585
   ORDER

No extraordinary circumstances, unusual or exceptional conditions, appearing the the record (as Provided in Rules I and II of our Criminal Rules hereafter to be known as Criminal Procedure Rules 2 and 3 adopted by this court on June 28, 1971), the White County Circuit Court, Second Division, is herewith directed to either set for trial Case No. 2579 wherein the Defendant, Franklin Ray, is charged with the crime of Burglary and Grand Larceny, on or before April 16, 1973, or, in the alternative, to release said Defendant, on his own recognizance by said date to await trial.

It is so ordered.

Fogleman, J., would deny the Writ.

       Criminal Procedure Rule 2
      All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
      Criminal Procedure Rule 3
      All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial.


author: PER CURIAM.

text:
    Ewell THOMAS, d/b/a THOMAS TERMITE CONTROL v. COMMITTEE “A” ARKANSAS STATE PLANT BOARD
    73-145
    497 S.W. 2d 9
    Opinion delivered July 16, 1973

      Warren E. Dupwe, for appellant.

      Jim Guy Tucker, Atty. Gen., for appellee.
   PER CURIAM.

Ordinarily, motions for a rule requiring the clerk to accept a transcript on appeal are passed upon without any opinion. Since it seems obvious that misconceptions exist as to the circumstances . under which these motions will be granted, we deem it appropriate to render an opinion in this case.

Appellant tendered the record to the clerk for filing on June 7, 1973, two days after the expiration of the 90-day period allowed by statute for filing of the record and docketing the appeal. He has filed a motion for a rule on the clerk to require the filing of the transcript. His attorney filed an affidavit in support of the motion stating the failure of appellant to meet the “suspense date” was attributable to the aftermath of several tornadoes which struck the City of Jonesboro on May 27, 1973, damaging both the attorney’s home and law office, totally destroying his sister’s home and substantially increasing his duties and responsibilities as City Attorney of Jonesboro. Specific enumeration of the intensity of these duties mentioned required attendance at an emergency council meeting and intensive cooperation with the United States Corps of Engineers.

In our previous orders and actions we have restricted the granting of such motions to situations involving unavoidable casualty in both civil and criminal cases. We can readily classify the devastating Jonesboro tornado or tornadoes as falling within the category of the forces of nature or Act of God characterizing an unavoidable casualty productive of the “most extraordinary circumstances” which justify out permitting the tardy lodging of an appeal. See West v. Smith, 224 Ark. 651, 278 S.W. 2d 126; Bernard v. Howell, 254 Ark. 828, 496 S.W. 2d 362.

The situation here bears some resemblance to another instance in which we found that a late filing was pardonable because of unavoidable casualty and reversed a chancery court’s action failing to grant relief on that account from the confirmation of a foreclosure sale. The sale had been held on July 3, 1930, and the decree of confirmation was entered on August 5, 1930. The mortgage debtor had employed an attorney to prepare exceptions to the sale, but did not receive them until 10:30 a.m. on August 5, when he called the clerk of the chancery court and found that the sale had been confirmed, court adjourned and the judge out of the city. He did not file the exceptions until August 13. The appellant there showed that his failure to receive the exceptions in time to file them before confirmation was attributable to his having been involved in an automobile wreck on the night of August 4. We found that timely filing was prevented by unavoidable casualty and set aside the chancery court’s order of confirmation. Vaughn v. Screeton, 183 Ark. 816, 39 S.W. 2d 299. We think that the circumstances here and those in Vaughn are the type of unavoidable casualty which courts should recognize.

We note that, in this case, unlike others where we have denied such motions, the Attorney General, appellee’s attorney, has no objection to the granting of this motion, under these circumstances.


author: Carleton Harris, Chief Justice.

text:
    James FANT v. STATE of Arkansas
    CR 73-69
    498 S.W. 2d 332
    Opinion delivered September 4, 1973

      R. Gary Nutter and Smith, Stroud, McClerkin, Conway $r Dunn, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

On February 3, 1972, James Fant, appellant herein, entered a plea of guilty to the charge of grand larceny and was given a ten year sentence by the Miller County Circuit Court. The court suspended the sentence conditioned upon good behavior and “leaving alcohol alone”, making the following pertinent remarks at the time.

“Your problem apparently is drinking, and then you don’t leave other people’s stuff alone. *## A man with a wife and six children, and a woman — the mother of those children, who has had cancer, and then, times as hard as they are around your house — it has to be. *** And you don’t have any money in that dollar at all to buy any kind of hooch. When you take one drop of anything, you are taking a piece of bread out [of] one of those kid’s mouth, and they are going to have to live on wind pudding. If they do, you are not going to be here to see it. Let me tell you one other thing. I am going against the recommendation of the law enforcement officials by giving you a suspended sentence. I may make a mistake in your case one time. I don’t plan on making it twice.”

The matter of Fant’s refraining from the use of alcohol was mentioned forcefully several times and appellant apparently fully understood, stating, “I can leave alcohol alone. I guarantee that I can.” Subsequently, on July 26, appellant was arrested in Texas by Officer Dale Hampton of the Texas Highway Patrol and charged with driving while intoxicated, following an automobile accident. On August 31, a hearing was conducted by the Miller County Circuit Court as a matter of determining whether the suspended sentence given Fant should be revoked. Officer Hampton testified that following the accident, he administered a breathalizer test, and after stating his qualifications for giving the test, stated that Fant checked 0.18 which, under Texas law, established that he was under the influence of alcohol.

The officer also said:

“He was definitely intoxicated. He acted intoxicated; he was unsteady on his feet; and in my opinion, he was in an intoxicated condition.
BY THE COURT: Did you smell any intokicants on him?
THE WITNESS: Yes, sir, I could smell intoxicants on his breath.”

On cross-examination, Hampton testified that Fant told him that he had had “one beer and one drink of whiskey.” Appellant testified that a friend gave him a drink of whiskey, stating to him that “just one drink won’t hurt you” and that he had also had “two beers”; that he had “chunked the beer out — the last can out” about five minutes before the accident occurred. At the conclusion of the hearing, the court revoked the suspended sentence, stating:

“This is the third occasion that you have been brought back in here for a revocation, and because of your children and your wife, I have given you two additional chances. You have been in trouble before, and I told you after you had advised me that your troubles always came after you drank; that for you not to take one drop of alcohol, didn’t I? *** And after the last petition, and there was evidence that you had been drinking, I told you I would give you one other chance, didn’t I?
THE WITNESS: Yes, sir.
THE COURT: And then you go out and get liquor and beer when you know what it does to your system. Alcohol to your system is just exactly like strychnine is to other people.

On this appeal from the revocation, two points are relied upon, viz., that the revocation was an abuse of discretion by the trial judge, and second, that the appellant was unlawfully returned from the State of Texas to this state for the revocation hearing, contrary to his rights under the United States Constitution.

Appellant concedes that the action of the court in revoking the suspended sentence will not be reversed on appeal unless there has been a gross abuse of the trial court’s discretion. Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353. It is then asserted that the revocation occurred “because of the fact that the appellant consumed one drink of whiskey and two cans of beer.” We cannot agree with this assertion; rather, it appears that the suspension was revoked because of evidence that Fant was intoxicated, such evidence being presented in court at a hearing, and appellant being represented by counsel. In Spears v. State, 194 Ark. 836, 109 S.W. 2d 926, Spears had pleaded guilty to grand larceny, the court, however, suspending sentence “during good behavior.” Subsequent thereto, the suspension was revoked and inter alia, Spears asserted that the evidence was insufficient to justify the revocation. We disagreed, stating:

“Here, the evidence was sufficient to justify the court in exercising the discretion it did as the evidence on the part of the state was to the effect that appellant was drunk, was cursing in a public place, and had a fight with one Jack Fulmer.”

In addition, it will be noted that the court mentioned that this was the third occasion that a revocation had been sought by the State, and that the court had refused to earlier revoke the suspension, giving appellant additional opportunities to properly conduct himself.

It is apparent that the trial court had, contrary to appellant’s .allegations, been rather lenient with Fant, and we certainly find no abuse of discretion in revoking the suspended sentence.

Nor do we find any merit in appellant’s second contention. It is asserted that there is no evidence in the record that Fant consented to being removed from the State of Texas to the State of Arkansas, and that there was no extradition proceeding initiated and followed by this state. Of course, on the other hand, though appellant testified, there is no evidence that he was returned to this state against his will, nor was any such contention advanced at the hearing. The subject does not appear in any manner in the trial court. No authority is cited in appellant’s brief, and only three paragraphs are devoted to this point. Even if there were evidence that Fant’s return to this state was involuntary or accomplished by force, it would not appear there is merit in the contention. As early as 1885, this court held contrary to appellant’s contention. See Elmore v. State, 45 Ark. 243. In United States v. Vicars, 467 F. 2d 452 (1972), Cert. denied March 5, 1973, the United States Court of Appeals for the Fifth Circuit, in denying a similar contention, stated:

“Even if, as Gonzales claims, he was illegally arrested in the Panama Canal Zone and brought to the United States, this is not grounds for requiring that the trial court release and discharge him without trial. E. g., Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 511, 96 L. Ed. 541, 545 (1952) (‘This Court has never departed from the rule . . . that the power of a court to try a person for crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a “forcible abduction.” ’); Stamphill v. Johnston, 136 F. 2d 291, 292 (9th Cir.) cert. denied, 320 U.S. 766, 64 S. Ct. 70, 88 L. Ed. 457 (1943) (‘The personal presence of a defendant before a District Court gives that court complete jurisdiction over him, regardless of how his presence was secured, whether by premature arrest. . . wrongful seizure beyond the territorial jurisdiction of the court . . . false arrest ... or extradition arising out of an offense other than the one for which he is being tried.’); United States ex rel. Voigt v. Toombs, 67 F. 2d 744 (5th Cir. 1933), petition for cert. dismissed, 291 U.S. 686, 54 S. Ct. 442, 78 L. Ed. 1072 (1934) (‘It is well settled in the courts of the United States that jurisdiction once acquired in a criminal case is not impaired by the manner in which the accused is brought before the court.’).”

Affirmed.

       In Jarvis v. Alcoholic Beverage Control Board, 253 Ark. 724, 488 S.W. 2d 709, Officer Jim McClure testified relative to intoximeter tests given to persons arrested for drunkenness. From the opinion:
      “McClure explained the procedure in giving the tests and said that the final reading on Arlis Lee was .18%. The witness explained that .10% supports a charge of driving while intoxicated and a .15% or over is public drunkenness.”

      On June 14, the prosecuting attorney’s office had filed a petition asking for revocation of the suspension on the basis of the fact that Fant had been involved in a fight and jailed for aggravated assault in Texarkana, Texas. The field report of the probation officer reflected that the complaint had been filed by Fant’s wife, Fant and her brother having engaged in a fight, and Mrs. Fant being cut and stabbed on the arm and in the side by appellant when she tried to break up the fight. The recommendation was that probation be revoked but the court, as stated, did not enter such an order at that time.


author: George Rose Smith, Justice.

text:
    Daniel INGRAM, Jr. et al v. STATE of Arkansas
    CR 73-39
    498 S.W. 2d 862
    Opinion delivered September 4, 1973
    [Rehearing denied October 8, 1973.]

      Harold L. Hall, Public Defender, by: Garner L. Taylor Jr., Dep. Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The three appellants, Daniel Ingram, Jr., Raymond Pruitt, and Willie Stovall, were tried jointly, convicted of rape, and sentenced to thirty years imprisonment. We find no merit in their four contentions for reversal.

On the night of July 18, 1972, Mr. and Mrs. Danny McCulley, both 19 years old, were hitchhiking in Pulaski county on their way back to their home in Florida. They were picked up by the three appellants, residents of Pulaski county, who promised to take the McCulleys to Memphis. Instead, the appellants drove to an isolated spot outside North Little Rock, where they locked Mc-Culley. in the trunk,of the car and successively raped Mrs. McCulley. Upon releasing McCulley the appellants took his watch, which was a Seiko “week-dating” watch with a cracked crystal. When the appellants drove off, the Mc-Culleys made their way to a farmhouse and called the police.

Within a day or two the sheriff’s department, apparently acting upon the McCulleys’ description of the appellants’ car, arrested the three appellants. All three men signed confessions, which the trial judge, after a Denno hearing, found to have been voluntary. The McCulleys identified the three men. The McCulleys also testified that when the appellants first stopped their car at the scene of the crime and pretended to be looking for some sort of mechanical trouble, the McCulleys handed them a book of matches. The officers found in the appellants’ car a book of matches advertising the McCulleys’ bank in Florida. The defendant Stovall led the officers to the place where he had thrown McCulley’,s watch, which was recovered. The McCulleys identified the matches and the watch.

The appellants first argue that the trial court should not have allowed the State to prove that the appellants robbed McCulley of his watch, it being contended that the robbery was a separate crime having no bearing upon the charge of rape. The testimony about the robbery, however, must be considered along with the proof that Stovall assisted the officers in finding the watch. The proof was clearly relevant, as tending to show that the appellants were the perpetrators of the rapes. Stone v. State, 162 Ark. 154, 258 S.W. 116 (1924).

The appellants’ second and third points have to do with the prosecuting attorney’s use of Ingram’s confession in the course of cross-examining Ingram himself. This is the background for the appellants’ present contentions: The three confessions had been introduced by the State as part of its case in chief, but in each confession all references to the other defendants by name had been deleted in an effort by the State to comply with our holding in Mosby v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). Later on each defendant took the stand and testified in his own defense. Each one denied his participation in the rapes and, with supporting witnesses, testified that he was somewhere else at the time the offenses were supposedly committed. Each defendant also testified that his own confession, although admittedly signed by him, had been obtained by police brutality and was not true.

The prosecuting attorney, in cross-examining Ingram, was permitted to read from Ingram’s original confession rather than from the modified version in which the names of Pruitt and Stovall had been deleted. The trial judge, in allowing that procedure, instructed the jury that the confession was to be considered only with respect to Ingram’s credibility and was not to be considered as evidence against the other two defendants.

We find no error. The original unexpurgated confessions were at first inadmissible only because they were evidence implicating the codefendants without affording the latter their constitutional right of cross-examination. But that objection disappeared when all the defendants elected to testify, submitting themselves to cross-examination. Jackson v. State, 253 Ark. 1116, 491 S.W. 2d 581 (1973). We are not impressed by the appellants’ insistence that the Jackson case is to be distinguished on the ground that there the codefendant testified favorably to the complaining appellant, while here the codefendants testified favorably only to themselves. In effect each appellant stated on oath that the McCulleys and the police officers had all testified falsely. We fail to see how that testimony can be regarded as being either unfavorable to the codefen-dants or restrictive of their right of cross-examination.

The appellants also argue, without citation of authority, that the prosecuting attorney should not have been allowed to use Ingram’s original confession for impeachment purposes, because it was not introduced in evidence. A complete answer to that argument is that Ingram’s confession, as we have said, became admissible when he took the stand. Had there been any request by the defendants that it then be introduced in evidence, that request would doubtless have been granted. There was no such request, nor is there any indication that the court’s procedure was prejudicial to the defendants.

Finally, the appellants contend that the trial court should have granted their motions for separate trials. Whether the defendants in a non-capital case (as this one now is) are entitled to a severance rests in the sound discretion of the trial court. Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1 (1950). Inasmuch as all three of the appellants denied their participation in the offenses and sought to establish alibis, there was no essential conflict in their defenses. We are unable to say that the trial judge abused his discretion in requiring the appellants to be tried together.

Affirmed.


text:
    James P. WILLIAMS v. STATE of Arkansas
    CR 73-76
    498 S.W. 2d 335
    Opinion delivered September 4, 1973

      Cearley and Gitchel, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In the Little Rock Municipal Court the appellant was found guilty of driving a motor vehicle while under the influence of drugs. Ark. Stat. Ann. § 75-1026.1 (Supp. 1971). This appeal is from the circuit court’s affirmance of the municipal court judgment.

The appellant is correct in his contention that there is no proof that he was under the influence of drugs at the time of his arrest. He was suffering from hypoglycemia, an affliction that may cause dizziness or unconsciousness. A state policeman arrested Williams upon finding him unconscious in a sitting position at the wheel of a car which was standing on a public highway with its motor running. According to the officer, there was a strong odor of alcohol upon Williams’ breath. Williams’ intractable conduct upon his return to consciousness, together with the presence of certain pills upon the dashboard of the car, led the officer to charge Williams with driving under the influence of drugs. However, the undisputed testimony, including that of Williams’ doctor, shows that the pills were prescribed tranquilizers which could not have caused the condition in which Williams was found. Williams himself admitted that he had drunk beer before his arrest, but his testimony that he had not taken either the tranquilizers or any other drug is uncontradicted. Thus there is no proof to sustain an essential element of the charge.

Reversed and dismissed.


author: Lyle Brown, Justice.

text:
    Billy Ray PATRICK et al v. STATE of Arkansas
    CR 73-59
    498 S.W. 2d 337
    Opinion delivered September 4, 1973

      Robert F. Morehead, for appellants.

      Jim Guy Tucker, Atty.'Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

The appellants, Billy Ray Patrick, Lonnie Ray Randolph and James Jackson were convicted of burglary and grand larceny in connection with the burglary of Foqg’s Grocery Store in Eudora. Appellants attack the propriety of their confessions being admitted into evidence. Also, they contend that the trial court erred in admitting exhibits consisting of some dollar bills, silver certificates, quarter wrappers and an empty cartridge box, all of which purportedly came from the victim’s safe.

The first point concerns the admissibility of Lonnie Ray Randolph’s statement. It is pointed out that Randolph was incarcerated for five days; that the jail cell was leaky; that he was questioned several times by five officers; and that he was fifteen years of age at the time. No evidence was introduced that any of the recited circumstances contributed to coercion. Randolph’s main argument is that the taking of a statement from a fifteen year-old boy is violative of his constitutional rights. We have held to the contrary in a case involving a boy of the same age. In Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969) we said:

By the great weight of authority a minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult. The cases are anaylzed at length in People v. Lara, 62 Cal. Rptr. 586, 432 P. 2d 202 (1967), and need not be re-examined here.

Randolph also contends that no statement should have been taken from him because of his age. He cites Ark. Stat. Ann. § 45-224 (Repl. .1964). That statute provides that a person under eighteen years of age, who is arrested without a warrant, shall forthwith be taken before the county juvenile court and the case examined to determine whether he is dependent or neglected. That statute is directory and not mandatory. We have so held with respect to a similar statute, Ark. Stat. Ann. § 43-601 (Repl. 1964). That statute provides that any person arrested without a warrant shall be forthwith carried before . a magistrate. We have held § 43-601 to be directory and not mandatory; further, we have many times' recited that the failure to comply with that statute does not void a confession. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958); Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967).

All three appellants gave confessions. Those instruments were introduced in toto. Each confession implicated the other two appellants. Appellants argue here — and made it known in the trial court — that it was error to introduce cross-implicating confessions. (None of the appellants testified.) The point is well taken. We faced the same problem in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). Thére we said:

It now appears that the use of the cross-implicating confessions in the case at bar is not permissible in a joint trial because of being in violation of the confrontation clause of the federal Sixth Amendment. The answer to the problem seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion is feasible and can be done without prejudice, or to grant separate trials.

To the same effect see Byrd, et al v. State, 251 Ark. 149, 471 S.W. 2d 350 (1971); Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971).

Because of a possible second trial we treat one other point. That concerns the introduction by the State of some dollar bills, silver certificates, quarter wrappers, and an empty cartridge box. The dollar bills had an unusual fold so that they might fit into a very small Chinese envelope. The prosecuting witness identified the bills by the folds and we think that evidence was admissible. The silver certificates, quarter wrappers, and the empty cartridge box bore no particularly identifying marks and therefore should not have been introduced.

Reversed and remanded.