author: Frank Holt, Justice.

text:
    Josephine Louise LADD v. Lon H. LADD, Sr.
    78-142
    580 S.W. 2d 696
    Opinion delivered May 14, 1979
    (In Banc)

      Kincaid, Horne & Trambo, for appellant.

      Charles E. Hanks and Pearson & Pearson, by: Thomas Pearson, for appellee.
   Frank Holt, Justice.

Appellant and appellee were married on September 11, 1961, in New Mexico and lived there as husband and wife until May, 1976, when they moved to Arkansas. About a year later, appellee filed for divorce and appellant counterclaimed. Appellee was granted a divorce on the ground of appellant’s habitual drunkenness. Her counterclaim was dismissed. All jointly owned Arkansas property was ordered sold and the proceeds divided between the parties. Appellant was awarded certain items of personalty as her separate property. She was denied any interest in other property allegedly acquired by the parties during their marriage in which she claimed Vz interest as community property. The court declined to rule on the parties’ respective interests in a $90,000 promissory note secured by a real estate mortgage on New Mexico property on the ground that it had no jurisdiction to decide title to foreign property. Appellee was ordered to pay appellant $500 per month alimony and her current medical and hospital bills. For reversal appellant asserts that the court erred in failing to award her Vz interest in the promissory note, Vz interest in items of personal property which were community property when removed from New Mexico to Arkansas, and a Vz interest in property purchased with community funds by appellee in Arkansas. Appellee cross-appeals asserting that the court erred in awarding alimony to appellant.

Pursuant to Ark. Stat. Ann. § 27-2139 (Repl. 1962), appellee has filed a motion with this court seeking dismissal of appellant’s appeal with respect to the ownership of the $90,000 note, payable on its face to appellee and appellant, which is secured by New Mexico property and held by a New Mexico bank for collection. Appellee’s motion is based upon the ground that appellant has, subsequent to this appeal, instigated an action in a New Mexico court to recover her alleged interest in the note, and therefore this constitutes an abandonment of her appeal. Appellant responds that the New Mexico action was initiated because appellee had asserted complete ownership of the note to the escrow bank, that the bank had contacted appellant’s attorneys requesting that legal action be taken so they would not have to decide ownership, and that the action taken was done to protect her proprietary rights in the note and was not intended to affect or abandon her appeal to this court. The New Mexico trial court’s order directed that all proceeds on the note, not to exceed $1,000 per month, be distributed to appellee and, should a court of competent jurisdiction adjudge appellant is entitled to Vz of the proceeds, the bank shall provide for a recoupment. The order recognized the pendency of the appeal here.

Appellee cites 4 Am. Jur. 2d, Appeal and Error § 264:

There is considerable authority that a party against whom an adverse judgment has been rendered and who, pending an appeal therefrom, prosecutes another action based upon the same cause and involving the same parties and issues, will be held to have waived or abandoned his right of appeal.

However none of the cases cited there deal with the exact situation presented here. Our few cases dealing with abandonment of appeal have involved cases which had been prosecuted to judgment in other courts. See Church v. Gallic, 76 Ark. 423, 88 S.W. 979 (1905); and Pillow v. King, 55 Ark. 633, 18 S.W. 764 (1892). Here it does not appear that the injunctive proceeding in the New Mexico court was prosecuted to a final judgment. To the contrary, it appears the proceeding was stayed pending disposition of the appeal here. The court’s order, in effect, merely provided for a continued collection of the note by the escrow bank with payments to appellee and recoupment for appellant for any excess payments collected by the appellee in the event a court of competent jurisdiction, as here, adjudges appellant is entitled to Zz interest in the proceeds of the note. In the circumstances, we hold that the appellant, by her New Mexico proceeding, has not waived or abandoned her right to appeal with respect to this note. Accordingly, appellee’s motion to dismiss the appeal is denied.

We now turn to appellant’s first contention which is that the court erred in finding that it did not have jurisdiction to decide title to the promissory note secured by the mortgage on the New Mexico property. We agree. The note is personalty and, the parties being within the jurisdiction of the court, may have title to it adjudicated by an Arkansas court. Bell v. Wadley, 206 Ark. 569, 177 S.W. 2d 403 (1944). Here it appears uncontradicted that, early in their marriage, appellee’s separate funds were used by him to purchase a motel. Thereafter the motel was sold by him resulting in the promissory note in dispute. It is argued by appellant, however, that since the note on its face is payable to both appellant and appellee, it is therefore jointly owned and she should be entitled to a Zz interest. We disagree. Under New Mexico law, which is applicable here, property acquired after marriage by a spouse in exchange for his or her property owned prior to marriage remains the separate property of that spouse unless transmutation into community property is shown by clear, strong, and convincing evidence. Burlingham v. Burlingham, 384 P. 2d 699 (N.M. 1963). Here, as indicated, it is uncontradicted that the source funds for the purchase of the motel were appellee’s separate property. Consequently, appellant’s evidence is insufficient to meet New Mexico’s requirements on the theory of transmutation. Therefore appellee is entitled to the entire interest in the promissory note.

We next consider appellant’s contention that certain personalty is community property and, therefore, the court erred in failing to award her Zz interest in those items which were removed to Arkansas. Appellee responds that the contested property is separately owned by him pursuant to a reconciliation agreement signed by the parties in New Mexico. It is true that parties may, by written agreement, provide that property, which would otherwise be community property, is separate property. § 40-3-8, N.M.S.A., 1978. (§57-4A-2, N.M.S.A., 1953). Here the agreement provided that it is the parties’ desire to make a complete and final settlement of all their property rights now owned by them and property which they might hereafter acquire by either of them; that each of them is fully and completely informed of the financial and personal status of the other and had given mature thought to the agreement and its obligations; that they understand the agreement and its obligations and “the agreement is in full satisfaction of all obligations which each of said parties now has or might hereafter, or otherwise, have, toward the other;” and their present separation is the result of “her activities and her desire.” The agreement further provided that the appellant agrees to transfer certain shares of stock to appellee, her interest in their Albuquerque home with an equity of approximately $18,000, and all the furniture and fixtures in the home. Appellee agreed to transfer to appellant a 1957 Facel Vega automobile, $5,000 in jewelry which had been given to the appellant by the appellee, her personal effects, an oil painting, and a silver service. The agreement also provided that all property acquired by either of them subsequent to the date of the agreement would be the separate property of the party acquiring the same and the agreement could be “incorporated in any decree which may hereafter be obtained by either party.” The chancellor found that the agreement did not bear upon nor was decisive of the issues in the case. However, appellee invokes this agreement as controlling their property rights and contends that the property now sought by appellant is his separate property. Appellant argues that the agreement is void because of fraud, duress, undue influence, and a violation of public policy.

The validity of the contract is determined by the place in which it was made. Simpson v. Weatherman, 216 Ark. 684, 227 S.W. 2d 148 (1950). Although New Mexico does not seem to have dealt with the validity of a reconciliation agreement, it has ruled on the validity of property agreements in contemplation of divorce. We deem that law applicable in this situation. The leading case appears to be Beals v. Ares, 185 P. 780 (N.M. (1919), which holds that when the husband was the manager of the community property, as it appears here, and the wife did not have any knowledge of the assets, the husband had the burden of proving that the agreement concerning property rights was fair since the parties held the positions of trustee and beneficiary. The court stated that (1) the transaction was presumably fraudulent, and (2) a duty devolved upon the husband to show (a) a payment of adequate consideration for the transfer of the wife’s property, (b) full disclosure, and (c) that the wife had independent and competent counsel. See also Unser v. Unser, 526 P. 2d 790 (N.M. 1974); and Trujillo v. Padilla, 442 P. 2d 203 (N.M. 1968).

Here, according to appellee, appellant did not know the details of his financial holdings or business affairs. The agreement left her “out in the cold. ” The reconciliation was conditioned upon the agreement, which was drafted by his attorney, and she could “take it or leave it.” He would have filed for a divorce if she had not signed the agreement. According to the appellant, she was not familiar with appellee’s assets at the time of the agreement; she had no source of income other than him; she signed the agreement because of her desire to effect a reconciliation after a three weeks’ separation; and she did not take the agreement to an attorney and signed it the day she read it. In the circumstances, we hold that the appellee has not met his burden of proof required by Beals, supra, Unser, supra, and Trujillo, supra, to establish that the agreement settling their property rights was fair and equitable. Additionally, we think the contract was unconscionable and contrary to public policy. Paragraph 1 of the agreement provides that “each party understands that the agreements and obligations assumed by the other are assumed with the express understanding and agreement that they are in full satisfaction of all obligations which each of said parties now has or might hereafter, or otherwise have, toward the other.” The effect of this provision is to relieve appellee of any marital obligations of support during the continuance of the marriage and, as such, is void as against public policy. See Towles v. Towles, 182 S.E. 2d 53 (S.C. 1971).

Having found that the agreement interposed by appellee as controlling their property rights is invalid and unenforceable, we now consider appellant’s contention that the court erred in failing to award her Vz interest in certain property acquired during their marriage and domicile in New Mexico and then removed to Arkansas. Specific items in which she claims Vz interest include a $4,000 Jaguar, a large quantity of jewelry valued by appellee at $29,650 (this does not include $5,280 worth of jewelry which the court awarded to appellant on the basis it was a gift from appellee), and 7 Corvairs valued at $1,250. It is undisputed that these items were acquired in New Mexico during their marraige and domicile there. Therefore New Mexico law is applicable in determining the ownership of these movable personalty items. Leflar, American Conflicts Law, §233. Property acquired in New Mexico during their marriage and domicile there by either party is presumed to be community property. § 40-3-12, N.M.S.A., 1978 (previously codified as § 574A-6, N.M.S.A., 1953). This presumption may be rebutted by a showing of separateness by a preponderance of the evidence. Burlingham v. Burlingham, supra. No evidence was presented to rebut the presumption of community property as to these recited items other than the 1965 property agreement. Since the 1965 agreement is unenforceable, appellant is entitled to a Vz interest in the cars and jewelry, which is $17,450.

Appellant also claims a Vz interest in certain property acquired by appellee in his name when the parties moved to Arkansas inasmuch as the funds used for the purchases were derived from the sale or conversion of community property in New Mexico. Upon the parties moving to Arkansas, appellee purchased certain property in his own name. The specific items in which appellant claims a Vz interest are: a tract of land valued at $32,000, appellee’s interest in a liquor store valued at $26,000, a trailer home valued at $5,000, and 2 fire trucks valued at $5,000. The appellee himself testified that these properties were acquired in his name in Arkansas by using funds derived from liquidation of assets acquired during their marriage and domicile in New Mexico. The funds expended were derived from the cashing of 2 certificates of deposit totaling $60,000 and the sale of a boat for $38,000.

Appellant argues that the New Mexico assets were community property and under the “source” doctrine, her interest in the newly acquired property remains the same as that held in the exchanged property. Every state agrees with this doctrine, at least to the extent that the parties are viewed as retaining the same equitable title. Leflar, supra, § 233. The “source” doctrine originated in the case of Depas v. Mayo, 11 Mo. 314 (1848). See also Tomaier v. Tomaier, 146 P. 2d 905 (Cal. 1944). In Depas the parties were domiciled in Louisiana where funds were acquired as community property. The parties moved to Missouri where the husband purchased property in his name with funds acquired by them in Louisiana. Appellee argues that Depas is not applicable as it was admitted there that the wife was entitled to Vi of the money which was used to purchase the Missouri property. We do not think the distinction important. Here it appears undisputed that the property used to purchase the Arkansas property was obtained from the sale or conversion of property acquired during their marriage and domicile in New Mexico. As previously discussed, the presumption is that all property acquired there during marriage and domicile is community property and the burden is upon appellee to show otherwise.

Appellee stated that the majority of the money used to purchase the certificates of deposit, in his name with appellee as survivor and later cashed by him, was from funds obtained as reimbursement of money that he had put into a family owned corporation during the marriage. This evidence does not suffice to overcome the presumption of community property as there was no evidence that the funds put into the company originally were not community property. Neither was there any evidence showing that the boat was not community property. Appellee again relies upon the 1965 property settlement as controlling. As indicated, it is invalid and unenforceable. Accordingly, we hold that appellant is entitled to a Vi interest in the recited specific items purchased by appellee in this state with funds acquired from the New Mexico property; i.e., the tract of land, the liquor store, the trailer home, and 2 fire trucks, which is $34,000.

Finally, appellee contends that the court abused its discretion in awarding alimony to appellant. He admits, however, that the court could award alimony even though the divorce was awarded to the husband for the fault of the wife. Walker v. Walker, 248 Ark. 93, 450 S.W. 2d 1 (1970); and Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973). Even so, here appellee argues that since the divorce was awarded to him for appellant’s habitual drunkenness and without a finding of fault on his part, the $500 per month award was without merit. The parties were married for approximately 15 years during which time appellant helped rear appellee’s two sons. It appears that appellant was in good health at the time of their marriage in 1961 and at his request discontinued her employment. He was a manufacturer’s representative, which required considerable traveling and entertainment of his prospective customers. Drinking was a part of the entertainment. Appellant accompanied him and a drinking problem resulted after about 4 years. After a 3 weeks’ separation, a reconciliation was effected as previously discussed. When they moved to Arkansas, she had free access to the liquor store in which appellee had purchased an interest. Within a year, the present litigation ensued. By this time, appellant’s drinking problem had become acute requiring a short period of hospitalization. She is also suffering from a progressive heart disease. Her health does not permit her to work. She has no assets other than some jewelry and some household furnishings. Her only income upon their separation was the alimony paid by appellee. According to appellee’s balance sheet, he has a new worth of $121,000 and his family owned corporation has retained earnings of $130,-000. As indicated the court awarded $500 a month alimony. However, in view of our modification of the decree as regards their respective property rights, we think $350 alimony at the present is amply sufficient.

Affirmed in part, reversed in part and remanded for entry of a decree not inconsistent with this opinion.

Byrd, J., dissents.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Booker T. WESTBROOK v. STATE of Arkansas
    CR 78-161
    580 S.W. 2d 702
    Opinion delivered May 14, 1979
    (In Banc)

      Julius D. Kearney, for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The Chief of Police for the City of Dermott, Arkansas, was shot and killed on August 29, 1977, while attempting to place the appellant under arrest. The record does not show what appellant was to be charged with but apparently it was for an offense of some type for which no warrant had been issued. During the arrest process the decedent and appellant struggled for possession of decedent’s pistol which was discharged once or twice before appellant obtained possession after which time he shot the chief one or more times. The charges were filed in Chicot County. Appellant moved for a change of venue and the court, acting without a hearing, changed the venue to Drew County. Dermott is approximately midway between Lake Village and Monticello, the county seats of Chicot and Drew Counties. Appellant was tried in Drew County Circuit Court on April 21, 1978, and received the death penalty. Appellant sets out 14 points in his appeal from the verdict and sentence. We will discuss each point raised on appeal but more than one point may be discussed under the same heading.

I.

THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR AN INDEPENDENT PSYCHIATRIC EXAMINATION BY A PRIVATE PSYCHIATRIST.

The matter of whether an accused is entitled to a psychiatrist of his own choosing when his defense to the charge is that of insanity has been decided by this Court several times. The most recent case is Andrews v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979). In the Andrews case we were asked to declare Ark. Stat. Ann. § 41-601 (Repl. 1977) unconstitutional. It was argued that since the defense of insanity is an affirmative defense that it placed the burden of proof on the defendant in violation of his constitutional rights. We have reviewed the authorities cited by appellant in support of this argument and find that such argument is invalid in this case. It is true that the defense of not guilty by reason of insanity placed the burden of proof of such defense upon the defendant. Because the defendant is required to affirmatively prove certain defenses, it does not follow that the state is relieved of the overall burden of proving the guilt of the accused beyond a reasonable doubt. The state has that burden in the beginning, throughout the trial, and at the end. In support of this position we cite Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969); Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973); Barber v. State, 248 Ark. 64, 450 S.W. 2d 291 (1970); and Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976).

II.

THE TRIAL COURT ERRED IN DENYING APPELLANT A HEARING ON THE RECORD BEFORE RULING ON HIS MOTION FOR A CHANGE OF VENUE.

Appellant timely moved for a change of venue. The trial court scheduled a hearing on this motion; however, when appellant appeared to argue the motion the trial court was engaged in the trial of a civil case. During a break in the civil trial the court informed appellant and the state that he was changing the venue from Chicot County to Drew County and therefore there would be no need for a hearing. Apparently the court felt the granting of the motion negated the necessity of a hearing. Had appellant protested the change to Drew County, or asked for another change, he might have been entitled to have us consider it on appeal. It is too late to argue it after the trial. It does not follow that a change of venue, would have been granted upon a second request because it is still a matter which is left to the sound discretion of the trial court. On the other hand, it may well have been that appellant would have been able to convince the court that the trial should have been held in one of the other counties in the district. The other four counties, Ashley, Bradley, Cleveland and Dallas, are more distant from Dermott than either Lake Village or Monticello. In support of our position that appellant would have been entitled to a hearing on his motion for a change of venue we rely upon Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966); Chitwood v. State, 210 Ark. 367, 196 S.W. 2d 241 (1946); Wood v. State, 248 Ark. 109, 450 S.W. 2d 537 (1970); and Williams v. State, 160 Ark. 587, 255 S.W. 314 (1923). Under the circumstances, no prejudicial error was committed.

III.

THE TRIAL JUDGE ERRED IN DENYING APPELLANT’S MOTION FOR DISQUALIFICATION OF JUDGE AND IN DENYING APPELLANT A HEARING THEREON.

The court denied appellant’s motion for disqualification without a hearing. The trial judge and his son were allegedly listed on their law office door as attorneys in the same firm. Additionally, the motion argues that the son, who serves as court reporter for his father, actually conducted a part of the initial investigation of this case as deputy prosecuting attorney.

Obviously, the consent of the parties was not obtained to allow the presiding judge to retain jurisdiction to hear this case. Without a hearing there is nothing upon which we can base our opinion except the allegations contained in the motion to disqualify. The motion contained reasons which, if true, would require the judge to recuse himself.

Although the burden was upon the appellant to show cause for disqualification of the presiding judge, he could hardly do so without the opportunity to be heard on his motion. We held in the case of Byler v. State, 210 Ark. 790, 197 S.W. 2d 748 (1946), that because the judge’s wife was a cousin of the victim the judge was disqualified because of such relationship. This fact was not known at the time of the Byler trial. However, in the present case it was known and a motion was made but never heard. Therefore, we feel it was error for the judge to fail to hold a hearing to determine whether he should remove himself from the case. We are not holding as a matter of law that the judge was disqualified but rather that, in view of the serious allegations made in the motion, a hearing should have been held. We agree with the reasoning in SCA Services, Inc. v. Morgan, 557 F. 2d 110 (1977), wherein it was held that a relative of the presiding judge being a member of the firm which appeared as counsel of record for one of the parties should have recused himself even though the relative had no actual personal relationship with either of the parties.

IV.

THE TRIAL COURT ERRED IN FAILING TO FIND APPELLANT UNFIT TO PROCEED OR TO ACQUIT HIM DUE TO MENTAL DISEASE AT THE HEARING ON THOSE ISSUES.

Again the judge should have made a finding after the hearing held for appellant on the motion to determine whether appellant was unfit to proceed to trial due to mental disease or defect. The evidence certainly raised a question which should have been ruled on by the court. We recognize the burden is upon the accused to establish that he was suffering from a mental disease or defect to the degree which would require him to be acquitted. In this case two psychiatrists testified, sometimes equivocally, that appellant was capable of assisting in his defense and that he understood the nature and extent of his actions. However, another psychiatrist and a psychologist testified that he was definitely suffering from mental disease to the extent that he could not assist in his defense nor did he realize the nature of his activities at the time of the incident in question. No witness testified that appellant would be rated in a higher category than a moron. For these reasons we believe the trial court should have made a determination of appellant’s mental condition and whether or not he was competent to proceed to trial. This matter will be discussed further in conjunction with another point.

We held in Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978), that the burden of proving incompetence was on the defendant. In Deason, the defendant accepted the report of the psychiatrist without objection and entered a plea of guilty. There we held that the court was under no duty to hold a hearing sua sponte at the time of the sentencing. However, here the appellant does not accept but strongly disputes reports of the psychiatrists and requested a hearing. Although a hearing was held, the court never made any finding or ruling, other than he would let the jury decide the matter. We think it was proper that the trial court should have made a specific ruling at this stage of the trial.

V.

THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT A CONTINUANCE WHILE HE SOUGHT TO SECURE RECORDS AND A WITNESS FROM THE STATE HOSPITAL.

The basic defense of appellant was that he was not guilty ot the crime charged by reason of mental disease or defect. Ark. Stat. Ann. § 41-601 (Repl. 1977) states:

(1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.
(2) As used in this Code (§§ 41-[ XXX-XX-XXXX ]) the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(3) When a defendant is acquitted on grounds of mental disease or defect the verdict and judgment shall so state.

The burden of proof required by this defense is a preponderance of the evidence. Thus, it is clear that the proof of this affirmative defense is much less than the burden required of the state in the overall case which is that of proof beyond a reasonable doubt. However, it is reasonably expected and indeed demanded that the state and its witnesses will not intentionally mislead the defense or refuse to furnish properly requested information. Although the appellant was presumed to be sane, he could show, by a preponderance of the evidence, that he was not guilty because of mental disease or defect.

Appellant insists he was denied crucial evidence to aid in his defense when he was not furnished the full records of the state hospital relating to the two prior commitments to the state hospital in 1972 and 1974. The record discloses that appellant filed a motion on October 4, 1977, to obtain these particular records. He was entitled to this information as a matter of law, as set out in Ark. Stat. Ann. § 41-605 (8) (Repl. 1977). This motion was granted on paper but appellant never received the records. On December 5, 1977, he was again told by the court that the information would be forthcoming. In fact, an order was issued to the state hospital to furnish appellant with the requested information. February 6, 1978, the request was renewed for these records. February 8, 1978, appellant filed a discovery request for these same records. On February 22, 1978, Dr. Whitehead and Dr. Oglesby appeared and gave testimony in response to a subpoena duces tecum but they failed to bring the missing records as required by the subpoena. On April 14, 1978, appellant’s counsel drove to Little Rock and was told by Dr. Whitehead that the other records did not exist but he could check at Benton where the records were supposed to be kept. Counsel was advised by the Benton unit that the records were probably in Little Rock. On this same date Dr. Whitehead told counsel that Dr. Buford, the treating physician or psychiatrist for the 1972 and 1974 commitments of appellant, was no longer there and might be dead. In truth, Dr. Buford was still employed as a colleague of Dr. Whitehead. The request for the missing records was renewed on April 18, 19 and 20, 1978. On this date, and previously, appellant had requested a continuance for the reason that he was not prepared fully to defend this action. The reason given was that he had not been furnished the records which had been so often requested by the appellant.

Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense. We note that Dr. Buford allegedly testified before the same prosecutor and trial judge on April 16 or 17, 1978. Even if the prosecuting attorney did not have the material requested in his possession, there was no reason why more compulsory processes could not have been utilized to obtain these vital records. It may be that something in these records would have enabled appellant to furnish stronger proof on his behalf. During trial the court reporter stated he would take care of getting the requested records to defense counsel. Perhaps he thought he could, but he did not.

We held in Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978), that appellant was entitled to receive the tapes from which witnesses’ statements had been transcribed and furnished by the prosecutor to the defense. The tapes were held to be the best evidence, and we feel the notes in this case fit into the same category. In Williamson we held the tapes were needed for the purpose of comparing the transcribed statements with the oral statements as recorded on the tapes in order to check for possible errors. In the present case it may have been that the notes would reveal that Dr. Buford, who also saw appellant during his 1977 confinement at the state hospital, would have been a favorable witness for the defense. The record does disclose that Dr. Buford had previously diagnosed the appellant as paranoid schizophrenic and placed him on unusually heavy dosages of antipsychotic drugs.

We do not feel this case is controlled by the facts in Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973), where we held the trial court did not abuse its discretion in refusing to grant a continuance because of the absence of witnesses subpoenaed by the defendant. In Thacker the court granted a hearing on the motion but the defendant refused to testify in support thereof. In the present case the materiality of the records has been clearly shown and the need for them was apparent. We recognize our prior holding that the granting of a continuance is within the sound judicial discretion of the trial court. Brown v. State, 252 Ark. 846, 481 S.W. 2d 366 ) 1972); Nash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970); and Walker v. State, 100 ARk. 180, 139 S.W. 1139 (1911).

VI.

THE TRIAL COURT ERRED IN REFUSING TO GRANT INSTRUCTIONS ON LESSER INCLUDED OFFENSES AFTER ALL THE ELEMENTS OF LESSER OFFENSES WERE ELICITED.

Appellant was charged under Ark. Stat. Ann. § 41-1401 (1) (b) (Repl. 1977) with the crime of capital murder which requires proof that the actions of a person be premeditated and deliberated in causing the death of a law enforcement officer. There are few, if any, offenses which shock and arouse a community so much as the crime charged here. Passion and prejudice often arise in the minds of our citizens without their actual knowledge of its existence. We have previously considered this in the earlier portion of this opinion where we dealt with disqualification and change of venue. This case went to the jury with only one possible conviction — capital murder. We believe the jury should have been afforded the opportunity to consider lesser included sentences. As we view the evidence as presented at the trial, it warranted the court to give instructions down through manslaughter. This would include murder in the first degree, Ark. Stat. Ann. § 41-1502 (Repl. 1977), murder in the second degree, Ark. Stat. Ann. § 41-1503 (Repl. 1977), and manslaughter, Ark. Stat. Ann. § 41-1504. At the new trial it may develop that the facts will not require all of these instructions.

We are not unmindful of our decisions in such cases as Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), which deal with cases where the evidence presented at the trial mandates either a conviction of the offense charged or acquittal. However, when the evidence presented shows the accused might be convicted of a lesser offense than that charged or of an offense which is necessarily included in the offense charged, it is the duty of the court to present instructions to embrace all degrees of a particular offense, and included offenses, to which the evidence is applicable. We stated in Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966), that the necessary elements of deliberation and premeditation in the offense of murder may be inferred from the factual circumstances as shown by the evidence, provided the circumstances clearly warrant the jury in such inferences or conclusions. If the evidence is such as to be inconsistent with any other hypothesis than that of the crime charged, then an instruction on a lesser included offense would not be required. In cases too numerous to mention we have stated that deliberation and premeditation may be inferred from the circumstances of the case as presented at trial. However, it is equally clear that if the evidence presented warrants instructions on lesser included offenses, such instructions must be given. Premeditation and deliberation are not required to exist for any particular length of time and may be formed almost on the spur of the moment. When we review all of the facts and evidence in this case, we cannot escape the conclusion that lesser included offenses should have been presented to the jury through instructions by the court. It was reversible error to fail to give the additional instructions for consideration by the jury.

VII.

THE TRIAL COURT ERRED IN COMMENTING TO THE JURY ON THE GOVERNOR’S PARDONING POWER DURING DELIBERATIONS ON THE QUESTION OF SENTENCE.

In the case of Bush v. State, 261 Ark. 577, 550 S.W. 2d 175 (1977), we unequivocally held it was prejudicial error when a trial judge discussed the matter of possible parole with the jury, in response to the question of a juror. We held it immaterial whether an immediate objection was made because it was the judge’s own error. We also held in Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954), that even though the tria! judge innocently approached the jury, during deliberations, as to whether they wanted him to remain at the courthouse during the noon hour that the resulting conversation was reversible error. In Bell we specifically held that it was not even necessary for the defense counsel to make an objection in order for the remarks to constitute reversible error. Also, in Adams v. State, 263 Ark. 536, 566 S.W. 2d 387 (1978), we held that before a federal constitutional error could be held harmless that we must be able to declare it was harmless beyond a reasonable doubt. For the above reasons we hold the remarks on the power of the Governor to pardon were prejudicial and reversible error.

VIII.

THE TRIAL COURT ERRED IN REFUSING TO REQUIRE FULL DISCLOSURE.

We have previously discussed this under Point V wherein we pointed out the critical need for this information. We only add at this time that the orders and efforts of the court, reporter and prosecuting attorney brought no relief to appellant. Such efforts amounted to an empty gesture in so far as results to appellant are concerned. The court possesses the power to get this information and the evasive conduct of the state hospital employees should not be allowed to go unnoticed. The appellant is entitled to these records, if they exist, before he is put to a second trial. Therefore, it was prejudicial error to fail to furnish appellant with the requested information, if it was in existence. It was the duty of the state to show that the requested information did not exist.

IX.

THE TRIAL COURT ERRED IN CREATING AN IMPROPER INFLUENCE AND RELATIONSHIP WITH THE JURY THROUGH HIS COMMENTS TO A JUROR DURING THE PERIOD OF THEIR DELIBERATIONS.

We do not agree that the comment of the trial judge to a juror that the judge’s daughter wanted him to say hello to the juror was prejudicial. However, it would have been much better had the judge seen fit to wait to convey this message until the trial had ended.

X.

THE VERDICT ON GUILT WAS CONTRARY TO THE LAW AND THE GREAT WEIGHT OF THE EVIDENCE.

XI.

THE VERDICT ON SENTENCE WAS CONTRARY TO THE LAW AND THE GREAT WEIGHT OF THE EVIDENCE.

These two very important points are considered together. In view of the fact that we have already found reversible error, we need not set out a full discussion on these points for the reason that if the case is before us again it will, no doubt, contain other evidence and perhaps some of the existing evidence will not be included.

We do not feel that there should be a wooden application of the death penalty in every instance where an officer is killed. This is, of course, the purpose of considering aggravating and mitigating circumstances which will be discussed later in this opinion. We fully recognize that it is within the province of the jury to weigh the evidence and resolve conflicts and discrepancies in testimony. This Court considers only that evidence which is most favorable to the state on appeal and it is our duty to affirm if there is substantial evidence to support the jury’s finding. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975); Scott v. State, 254 Ark. 271, 492 S.W. 2d 902 (1973); and Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978). In Stout we stated:

Appellant contends that the circumstances do not exclude every other reasonable hypothesis other than that appellant acted with premeditation and deliberation. Ordinarily, this determination is for the jury, particularly on the question of the reasonableness of another hypothesis, if the evidence does more than give rise to a suspicion and does not leave the jury solely to speculation and conjecture in determining whether other hypotheses are excluded. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733. On appellate review of the question, we view the evidence in the light most favorable to the state. Abbott v. State, supra. When we do so, and remember that the jury rejected appellant’s version, the evidence is sufficient. See Leonard v. State, 251 Ark. 1090, 476 S.W. 2d 807; McCray v. State, 254 Ark. 601, 494 S.W. 2d 708.

XII.

THE INSTRUCTIONS GIVEN ON THE QUESTION OF AGGRAVATING AND MITIGATING FACTORS TO BE CONSIDERED IN DELIBERATING A SENTENCE DID NOT REFLECT THE LAW.

We agree with appellant that the forms used for aggravating and mitigating circumstances, which were obviously drawn up for use in the case of James Wilkerson, Jr., were not in accordance with the statutes in force at the time of trial. The court used what was designated as Form A to present the aggravating circumstances to the jury. Paragraph D on Form A, which was checked by the jury, provided: The capital murder was, beyond a reasonable doubt, committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. Paragraph F provided: The capital murder was, beyond a reasonable doubt, committed for the purpose of disrupting or hindering the lawful exercise of any governmental function, including enforcement of laws, or political function. Therefore, two aggravating circumstances were found by the jury to have existed. The present statute, Ark. Stat. Ann. § 41-1303 (5) states: The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; No. 7 provides: The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any governmental or political function. Therefore, Form A, as given to the jury, Paragraphs D and F, includes wording which would allow the same act (attempting to avoid arrest) to result in the finding of two aggravating circumstances.

Form B was used by the court to guide the jury in determining mitigating circumstances. This form listed mitigating circumstances, B thru G. Paragraph A was added after G and it provided the jury could find that one or more mitigating circumstances existed or one or more circumstances did not exist. Although every question had a space to be checked, when it was found that a mitigating circumstance did not exist, none of these blanks were checked. The court obviously assumed that since none of them were checked either positively or negatively it meant the jury found none of them to exist. We think the jury should have been instructed to check the affirmative or negative blank on each question presented to them.

The forms presented to the jury were obviously made up prior to the Arkansas Criminal Code and were improper. Also, counsel for appellant was not permitted to inspect these forms prior to their submission to the jury. Had such an opportunity been afforded, counsel would have probably objected to the erroneous instructions. No doubt, in the next trial these forms will be given proper consideration.

XIII.

THE DEATH PENALTY AS HERE APPLIED IS UNCONSTITUTIONAL.

In view of the results reached we do not consider the argument that the verdict in this case was arbitrary, capricious, wanton and freakish. It must await reconsideration before we make a determination of this argument. We have dealt with the Stewart-Powell-Stephens opinion in Gregg v. Georgia, 428 U.S. 153 (1976), and are not unmindful of the requirements set out therein. For a complete discussion on this point, see Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

XIV.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL.

This argument is rendered moot in view of the fact that the case is being remanded for a new trial. We do feel that the facts in this case did require a new trial but different considerations may be before the court when the matter is again prosecuted. Our reasons for believing a new trial was warranted in the present situation are contained in discussion in this case under prior points.

Reversed and remanded.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    Petition of David Wayne PITCHFORD Ex Parte
    79-32
    581 S.W. 2d 321
    Opinion delivered May 21, 1979
    (In Banc)

      Pro Se
   Carleton Harris, Chief Justice.

David Wayne Pitchford filed an ex parte motion, styled “David Wayne Pitchford v. Ex Parte”, in this court seeking to take the bar examination. Mr. Pitchford is not a graduate of a law school and the petition does not reflect whether he attended college. Pertinent provisions of Rule XII of the Rules Governing Admission to the Bar read as follows:

Rule XII

REQUIREMENTS FOR TAKING EXAMINATION

1. Graduation from a law school shall not confer the right of admission to the bar, and every candidate shall be subject to an examination.
* * *
3. No candidate shall be allowed to take the Bar Examination unless he has graduated, or completed the requisites for graduation, from a law school approved by the American Bar Association or the State Board of Law Examiners.
* * *

It is asserted that the rule is a violation of Ark. Stat. Ann. § 25-101 (Repl. 1962) which provides:

Qualifications for admission. — Every citizen of the age of twenty-one [21] years, of good moral character, and who possess [possesses] the requisite qualification of learning and ability, may, upon application, and in the manner hereinafter provided, be admitted to practice as an attorney and counselor at law in the courts of this state. Provided, it shall be lawful for the Supreme Court to admit to practice as an attorney and counselor at law in the courts of this state any citizen under the age of twenty-one [21] years who is of good moral character and who possesses the other requisite qualifications of learning and ability, and who is a graduate of any accredited, recognized or Class A law school.

Before proceeding with the discussion of the contentions, it is probably well to first pass upon a motion for default judgment filed by Mr. Pitchford. While this motion was denied on March 19, 1979, specific reasons were not given. The motion for default judgment is not proper. The motion was denied because, in the first place, the Board of Law Examiners was not made a party; rather, as shown at the outset, the petition was simply an ex parte proceeding. Since the Board was not a party, it was not required to file an answer. Mr. Pitchford himself recognized that the Board was not a party in a letter to the clerk dated January 6, 1979, wherein he stated:

I respectfully represent that, I do not have to serve or even notify either of the members of the above mentioned organization.
My Motion arises out of a rule that the honorable Supreme Court of Arkansas inacted [sic] and has nothing to do with the Board of Law Examiners. That is why it is styled ‘David Wayne Pitchford vs. Ex Parte.’

Of course, Mr. Pitchford is correct in that the rule is a court rule, and we are simply being asked to set it aside.

The present Ark. Stat. Ann. § 25-101 was an amendment to the Civil Code, passed in 1873 as Act 88, and was last amended in 1927. The contention that our rule violates this statute appears to be the principal argument advanced by petitioner.

It is also asserted that the rule:

3) * * * violates the rights provided by, the Constitution of the State of Arkansas, Article 2, sub-section 12, in that, no power but the General Assembly can set aside or suspend the laws of the State of Arkansas.
4) That the rule subject of this motion is in direct opposition to, and violates the rights provided by, the Declaration of rights, within the Constitution of Arkansas, Article 2, sub-section 2, in that it deprives one the pursuit of their happiness, and liberty, for a person who has graduated from a law school or has a diploma from a law school should not be considered any more qualified to take the Bar examination and practice law than a person who has obtained the same knowledge of the law elsewhere.

It is further contended that the rule violates the rights provided by the Fourteenth Amendment.

We first discuss the argument relating to constitutional rights. Petitioner is in error in declaring that no power but the General Assembly can set aside or suspend the laws of the State of Arkansas, for certainly a constitutional amendment which changes prior procedure is superior to a legislative act, and Amendment 28, hereafter discussed more fully, places the authority to regulate the practice of law in the State Supreme Court.

In McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357 (1973), this court said:

Since the practice of law is a profession licensed as a privilege or franchise and its members officers of the court and a necessary arm of the judicial system, it is not a natural right, the regulation of which is limited by the state constitution.

As to the Fourteenth Amendment, in the same case the Court commented:

The right to practice in state courts is not a privilege or immunity under the Fourteenth Amendment to the United States Constitution. [Citing cases.] It is only when there is no rational basis for denying the right or privilege to practice in a state or there is arbitrary action or invidious discrimination by state officers excluding one from the practice that the ‘due process’ and ‘equal protection’ clauses of the Fourteenth Amendment come into play. [Citing cases.] But it was recognized in Konigsberg, as it had always been, that states are free to determine who may practice in their courts, so long as the power to do so is not exercised in an arbitrary or discriminatory manner. [Citing cases.]

The United States Supreme Court has said that the fact that rules may result in “incidental individual inequality” does not make them offensive to the Fourteenth Amendment. Martin v. Walton, 368 U.S. 25; Phelps v. Board of Education, 300 U.S. 319.

As earlier st: _ed, petitioner’s principal argument is based on Ark. Stat. Ann. § 25-101, heretofore set out. Petitioner points out that the statute, in referring to people who have reached the age of 21 years, makes no requirement whatsoever for graduation from a law school in order to be permitted to take the bar examination and that it only provides that the person shall have “the requisite qualification of learning and ability,” which he, in oral argument, contended could be acquired by study elsewhere than in law school.

It might be here pointed out that there is no contention in his petition that he has obtained the equivalent of a law school education by study in a law office; the entire petition is simply a contention that Rule XII is invalid and that there is no authority on the part of the court to promulgate a rule which is in conflict with the aforementioned statute, and further, that the rule is unconstitutional. Of course, ordinarily a rule would not supersede a statute, but petitioner overlooks the fact that this rule is the result of constitutional Amendment 28, passed by the people of this state in 1938. The Arkansas Supreme Court refused to make rules until this amendment was passed, the amendment reading as follows:

Supreme Court — Rule Making Power. — The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.

So — the question is not whether a rule supersedes the statute, but rather, whether a provision of the constitution supersedes the statute. Here, there is a conflict insofar as the rule, authorized by Amendment 28, requires graduation from a law school approved by the American Bar Association or the State Board of Law Examiners, while the statute requires no law school training. In McKenzie v. Burris, supra, we pointed out that statutes in conflict with rules adopted by this court under authority given by Amendment 28 were superseded by such rules. Of course, parts of a statute which do not conflict with a constitutional provision retain their validity.

Petitioner agrees that the amendment gives authority to discipline attorneys, but he argues that this is the entire purpose of the amendment, i.e., that the “regulating” authorizes only the taking of action against attorneys who have violated legal obligations. The wording of the amendment itself reflects the incorrectness of such an interpretation, for it clearly states “regulating the practice of law and the professional conduct of attorneys at law.” (Our emphasis.) If petitioner’s interpretation were correct, there would be no necessity in mentioning both functions.

Certainly, there can be no doubt that regulating the practice of law includes the preparation of rules determining and setting out the qualifications of one who desires to take the bar examination.

Again, in McKenzie, this court said:

Amendment 28 certainly put to rest for all time any possible question about the power of the courts to regulate the practice of law in the state. There can be no doubt that the power of the judicial department, acting through this court, is, in this respect, exclusive and supreme under this amendment, if the power was not already inherent in the courts. This does not mean, however, that adoption of this amendment had the effect of invalidating every act of the General Assembly bearing upon the subject, particularly those passed prior to the effective date of the amendment, if they are not necessarily in irreconcilable conflict with or repugnant to the amendment. An existing statute is superseded by a subsequent constitutional amendment only when there is an irreconcilable conflict or the statute is necessarily repugnant to the new constitutional provision.

Again, in Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W. 2d 900, we said:

The acts of the Legislature with regard to regulating and defining the practice of law are to be considered to be in aid of the judicial prerogative and not in derogation thereof. Arkansas Bar v. Union National, 224 Ark. 48, 273 S.W. 2d 408 (1954).

Likewise, in Feldman v. State Board of Law Examiners, 438 F. 2d 699 (1971), the Circuit Court of Appeals (in affirming the district court) stated:

The principle is firmly established that the judicial branch of the government, acting through the courts, has exclusive jurisdiction to admit, control and disbar attorneys. The courts may and frequently do honor implementing legislation, but clearly are not bound so to do.

The language of the Pennsylvania Supreme Court in Appeal of Murphy, 393 A. 2d 369 (1978), cert. denied, 99 S. Ct. 1204 (Feb., 1979), is pertinent to the matter before us. There, Murphy had appealed from the refusal of the Board to allow him to sit for the bar examination. The refusal was based on a rule by the Pennsylvania Supreme Court that an applicant must be a graduate of both an accredited college and an accredited law school, the latter accreditation by the American Bar Association. The rule making power concerning the practice of law was granted to the court by Article 5, § 10(c) of the Constitution of Pennsylvania. In holding that Murphy was not qualified to take the examination, the court said:

The admission of a person to practice law in this state is and always has been a judicial function, exercised now exclusively by the Supreme Court, with the aid of the State Board of Law Examiners. As explained at the outset, we have chosen to make a legal education one of the pre-conditions of seeking admission to our bar whether through the taking of the bar examination or recognition of the five-year practice equivalent in a reciprocating sister state.

Petitioner, in oral argument, stoutly argued that one could just as easily become qualified by studing in a law office, as by attending a law school. Of course, here, the record reflects no such office training on the part of Mr. Pitchford. There is no evidence, nor even allegation, that he has, for any period of time, attended any college, or law school, and the only reference to office training was mentioned in oral argument as reflected in footnote (4) of this opinion. Petitioner mentioned what he deemed the inadequacies of many lawyers, trained in law school, and practicing their profession. The comparison was also extended, although to a lesser degree, to those in the medical profession. Of course, it is true that in pioneer days men practiced law, medicine, dentistry, and engineering with but little, if any, academic training; certainly no one would deny, however, that the great strides of progress made in all of these professions could not have been accomplished except for scholastic and specialized training.

It follows, from what has been said, that we find petitioner’s argument to be without merit and accordingly, the petition is denied and dismissed.

It is so Ordered.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I cannot disagree with the majority’s reasons for not setting aside Rule XII. However, I would waive the Rule as to petitioner for him to take the examination on a one time basis as he suggested during his oral presentation. Occasionally people with little formal education surpass their fellowman with outstanding college degrees in the same field. Among such people are Abraham Lincoln, Henry Kaiser and Thomas A. Edison. History tells us that Thomas A. Edison’s teacher suggested to his parents that they were wasting their time and money in trying to send him to school.

It may be that petitioner will never become an Abraham Lincoln, but he appears enough of a “Maverick” to me that I would make an exception for the one time examination.

For the reasons stated, I respectfully disagree with the majority.

      There is also a requirement for college pre-law training, but that is not here involved.

      The chairman did direct a letter to the clerk, sending copy to Mr. Pitchford, pointing out that the Board was not a party to the action, and he did express his personal views that the matter was controlled by Amendment 28 to the Arkansas Constitution.

        Konigsberg v. State Bar of California, 353 U.S. 252.

      Mr. Pitchford mentioned in oral argument that in Virginia a person could read law and become a lawyer without going to law school, and that the program was still in effect. The record reflects that he was then asked, since he was a native of Virginia, why he didn’t follow that practice there, to which he replied: “Sir, what I did, I read law under my father who became deathly ill, and there was some controversy as to whether or not he was in the office enough. ” He did not say how long he studied in the office.

      It is interesting to note that Murphy was a graduate of Western State University College of Law of Orange County, Fullerton, California, and had taken and passed the California bar examination and been admitted to practice law in that state. Additionally, he had been admitted to practice before the United States District Court of Appeals for the Third District, the United States District Court for the Middle District of Pennsylvania, and the United States District Court for the Northern District of California. The action of the Pennsylvania Supreme Court was taken on the basis of the fact that the Western State University College of Law was not accredited by the American Bar Association.


author: George Rose Smith, Justice.

text:
    BIBLER BROTHERS LUMBER COMPANY et al v. Jimmy CHISUM
    79-51
    580 S.W. 2d 958
    Opinion delivered May 21, 1979
    (In Banc)

      Niblock & Odom, for appellants.

      Dale W. Finley, for appellee.
   George Rose Smith, Justice.

This is a claim under the workers’ compensation law for compensation incident to a surgical operation for a ruptured appendix suffered by the claimant. Upon conflicting medical testimony the Commission awarded compensation. In its opinion the Commission cited seven out-of-state cases in which it was found, upon conflicting medical testimony, that a blow or strain had caused or contributed to cause appendicitis. That point is not argued here. Instead, it is insisted that Dr. Luker’s testimony in favor of the award is so speculative that it cannot be regarded as substantial evidence. We agree with the Commission’s decision, which was affirmed by the circuit court.

Chisum was injured at work when a chain saw kicked back, with the handle striking him in the lower right side. Within a few minutes he became too ill to work and was taken to Dr. Luker’s office. Dr. Luker thought that he had a contusion, possible strain, or abdominal tear to the musculature. Chisum was sent home to rest, but his condition worsened. Three days later Dr. Luker’s associate diagnosed the ruptured appendix, and Dr. Bachman, a surgeon, performed the operation. It was Dr. Bachman’s opinion that the claimant’s work had nothing to do with his appendicitis.

Dr. Luker, a family practitioner, was of the opposite view. We do not consider his testimony as being too speculative to constitute substantial evidence. He recognized that appendicitis can be caused by a blow. He said that the time interval between the claimant’s injury and the development of appendicitis was about right. He also said that the claimant’s age made him favor the diagnosis of traumatic appendicitis, adding that “he’s the kind that, all other things being constant, is you just wouldn’t expect a diagnosis of appendicitis unless there was a trauma.” He could not say with certainty that the blow caused the condition, but it was “in the degree of probability.” When Dr. Luker’s testimony is considered as a whole, his conclusion that the blow from the chain saw probably caused the appendicitis appears to be a reasoned conclusion rather than mere speculation.

Affirmed, with an allowance of a $250.00 attorney’s fee to the appellee.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    Diarl F. NOLAND v. STATE of Arkansas
    CR 79-13
    580 S.W. 2d 953
    Opinion delivered May 21, 1979
    (Division I)

      Paul Johnson, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGoslin Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Noland was charged with theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977), found guilty by the court, sitting without a jury, and sentenced to two years’ imprisonment. We find no error in the appellant’s two points for reversal and affirm.

Appellant first contends that the trial judge erred in refusing to honor an agreement between the deputy prosecuting attorney, Mr. Roddey, and the appellant’s counsel, Mr. Rosteck, to dismiss the charge against the appellant if the stolen property, a refrigerator taken from an apartment the appellant and his wife had rented from Ben T. Newby, was returned to the owner.

Noland was arraigned on May 1, 1978, when his case was set for trial, after he had pleaded not guilty and waived jury trial. When the case was called for trial, appellant’s attorney filed and presented a letter from Newby, the owner of the stolen property, which stated that he was the prosecuting witness in the case and that, inasmuch as the property involved had previously been returned to him, he desired that the charge against the appellant be dismissed. The deputy prosecuting attorney stated that the state would be willing to dismiss the charge, but that the state was ready for trial and that the matter was up to the court.

After the state presented its evidence in chief and rested, Noland’s attorney asked for an opportunity to get “our witness”, saying that he had not expected to try the case on the day set because he thought the court would recognize the letter signed by the prosecuting witness. The circuit judge responded that the attorney knew that the court was not in the habit of doing that.

The letter involved was the result of conversations between Rosteck and Roddey and between Rosteck and Newby. We do not agree with appellant’s interpretation of the record. He contends that it shows an outright agreement of the deputy prosecuting attorney to dismiss the charge; however, as indicated by the following colloquy among Roddey, Rosteck and the trial judge, the dismissal of charges was contingent upon the judge’s agreeing to the arrangement:

MR. ROSTECK:
*** The Prosecutor and I talked about this last week, and this was our agreement that we had between the Prosecutor and I, that I would see to it this man got his refrigerator back, which he did, and, not only that, Mr. Noland had to pay some back rent which he claims was due, which he paid, too, and the man signed a letter that he did not wish to prosecute and I thought the Court would honor that, and I was not prepared to come to trial today. We’ve got some witnesses here who can say where this defendant was. What I’m trying to tell the Court is, this is confidential.
THE COURT:
You mean to tell me that the Prosecutor is making an arrangement with you and negotiating a plea and has led you to believe that he is running the Court here and—
MR. ROSTECK:
(Interposing) No, sir.
THE COURT:
—and you relied on it?
MR. ROSTECK:
I didn’t rely on anything Judge. What I’m saying—
THE COURT:
(Interposing) Certainly you’ve been practicing law long enough to know that the Prosecutor has got his job and the Court has got its job, and they are not the same.
MR. ROSTECK:
Judge, I’m fully aware of that. I was not prepared to go to trial on this this morning.
THE COURT:
Well, Mr. Rosteck, this case has been set for trial two and a half months, and I don’t know why not.
MR. ROSTECK:
It was because of the agreement we had with the Prosecutor and the Prosecutor asked me to call the man up, which I did, and it was satisfactory with the Prosecutor that we handle it in this manner, and we did. I’m sorry that we couldn’t get over here Friday, but we couldn’t get over here Friday.
THE COURT:
is that the way it happened?
MR. RODDEY:
He — I told him that if he thought that he wanted to contact the prosecuting witness and see if it would be amenable with the prosecuting witness, that would be fine. And then in the meantime I talked with my division chief and he said that we needed to be ready to go to trial or at least have the man come here, so I told him to have Mr. Noland come here, and I said we would leave it up to you. That is my recollection. I did not — If I am stating it wrong, correct me, but that is my understanding.
MR. ROSTECK:
It was our understanding that this is what we would do, Judge, and I thought it was all right. I could see no objection except the fact that —
THE COURT:
You can’t, but I certainly can, Mr. Rosteck. ***

After Rosteck stated that this was the first time in his 25 years of law practice that he had presented a “motion” signed by a prosecuting witness who did not want to prosecute, and prosecution had been “forced”, the court offered to continue the trial to permit Rosteck to obtain the attendance of witnesses. On the following day, the defendant did present witnesses and testified himself.

In addition to the fact that the terms of the agreement established that the approval of the trial judge was necessary for the dismissal of the charges against the appellant, Ark. Stat. Ann. § 43-1230 (Repl. 1977) prohibits any prosecuting attorney from entering a nolle prosequi, or in any way discontinuing or abandoning an indictment, without leave of the court in which such indictment is pending. Therefore, it is clear that both the agreement itself and § 43-1230 mandated the approval of the trial judge before charges pending before that judge could be dismissed.

Appellant cites two opinions of this court, Hammers v. State, 261 Ark. 585, 550 S.W. 2d 432, and the opinion in the same case after remand to the trial court, Hammers v. State, 263 Ark. 378, 565 S.W. 2d 406, in support of his contention that it was error for the court to refuse to accept the agreement to dismiss the charges. However, we do not feel that the Hammers decisions are supportive of this contention.

In Hammers, the prosecuting attorney agreed to grant Hammers immunity from prosecution in exchange for her testimony against her codefendant in a murder trial. Prior to trial, the codefendant pleaded guilty to a lesser charge. The prosecutor then brought Hammers to trial on the murder charge. She was convicted and appealed from the denial of her motion to stay the prosecution against her. This court ultimately reversed the appellant’s conviction and dismissed the charge, basing that decision on equitable principles, and finding that the state took full advantage of the bargain until the codefendant pleaded guilty and offered to testify against Hammers. In the first opinion, we had said:

It is only appropriate that an accomplice who, under an agreement with the prosecuting attorney, approved by or made known to the court, that he should be immune from prosecution, testified fully and truthfully as to the whole matter charged, be vested with an equitable right to the entry of a nolle prosequi or appropriate clemency. [Citations omitted.]
Clearly a promise of immunity approved by, or with the consent of, the court, should be upheld. ***

Thus, it is obvious that Hammers is not controlling in this case. That case involved a bargain for testimony from a defendant on a promise of immunity, and a refusal to honor the bargain when the circumstances changed. This court held that the trial court erred in holding that Hammers was not entitled to equitable relief by enforcement of the bargain. The prosecuting attorney in the case at bar was not attempting to withdraw from a prior agreement to dismiss the charges against the appellant. Rather, he was willing to honor this agreement, provided the trial judge approved of the nolle prosequi, which was properly a condition of the agreement from the outset, because it is required by statute. This court rejected a claim by a convicted defendant that a charge ought to have been dismissed because a former prosecuting attorney had agreed to dismiss it, by merely saing, “Of course, there is nothing in this contention.” See Dillard v. State, 65 Ark. 404, 46 S.W. 533. Hammers does not hold that any and all agreements reached between the defense and the prosecution must be upheld or enforced, regardless of the willingness of the trial judge to allow dismissal of charges. The trial judge is vested with discretion as to the entry of a nolle prosequi of charges pending before him. Webb v. Harrison, 261 Ark. 279, 547 S.W. 2d 748; Ark. Stat. Ann. §§ 43-806 and 43-1230 (Repl. 1977). Refusal to allow the dismissal of the charges in this case does not constitute an abuse of that discretion. As the circuit judge pointed out, the offense is against the state as well as against the victim.

Appellant contends that the trial judge erred in sentencing him without first making a meaningful inquiry into a presentence report. After hearing all the testimony and the arguments of counsel, and finding appellant guilty, the trial judge, after repeated insistence by Noland and his attorney that Noland was not guilty, reiterated the finding of guilt beyond a reasonable doubt, but, upon the request of Noland’s attorney for probation, agreed to “pass the case over for judgment” and provided appellant with an opportunity to take a polygraph examination, but advised Noland that the results would be admitted into evidence, whether “for or against the defendant.” Noland’s attorney then remarked that he had requested such a test when the case first came up, but when the judge asked why the test had not been given, Noland responded that his lawyer felt like it would not be advisable. Rosteck explained he then had no idea that “they” could recover the refrigerator or that it would be recovered, but when Newby said that all he wanted was his refrigerator back, he saw no sense in having a polygraph test.

The trial judge asked Noland if he wanted to submit to the test and Noland responded that he did and that he wanted “to prove without a shadow of a doubt that I had nothing to do with that refrigerator. ” After advising Noland that he could not do that because the case had already been tried and that this step was being taken only for the purpose of sentencing, the judge stated:

Now, you remain in constant contact with your attorney in this case, because when this is set up you had better be there and take this test. Whether you take it or not is up to you, but you will have the opportunity to take it. ***

The conclusion of the investigator who administered the polygraph examination to the appellant was that the appellant did not tell the complete truth during the examination. In the presentence report the probation officer stated that the polygraph examiner had stated, when interviewed, that a guilty knowledge of the crime, with an intent to conceal parties or facts, could result in examination results similar to those of the appellant. The probation officer also reported that Noland said that he thought he could have passed the test if it had been administered upon his arrest, rather than after the trial. The examination results, along with information about the appellant’s work history and education and the statements of four character witnesses, comprised the presentence report on the appellant. The presentence report concluded the appellant “has never been in serious trouble before,” “has a family to support and is of sufficient age and maturity to be considered a good prospect for a suspended sentence or probation.”

Ark. Stat. Ann. § 41-804 (Repl. 1977) details the information to be considered in a presentence investigation and subsection (4) provides:

Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. Sources of confidential information need not be disclosed.

Nothing in the statute requires that the trial judge follow the recommendation of the presentence report or that he specify the relative weight he attached to each element contained in the report, before he sentences a defendant. Appellant’s attorney was presented ample opportunity to controvert the information in the presentence report, or to request the opportunity to do so, as indicated by the following exchange:

THE COURT:
Mr. Rosteck, I have read your letter. I’ve read the report, which reflects there is no prior record. I’ve read the polygraph examiner’s record which reflects that the defendant, in his opinion, the defendant was not telling the complete truth. It’s the judgment and sentence of this Court — Do you have anything else to say?
MR. ROSTECK:
I don’t guess so.
THE COURT:
It’s the judgment and sentence of this Court that the defendant be sentenced to the State Penitentiary for two years.

The appellant cannot now complain that the trial judge or the probation officer who made the presentence investigation should have undertaken an in-depth review of the polygraph examination with appellant, in an effort to determine which questions and answers indicated deception, when the appellant was given an opportunity, prior to sentencing, to comment on the presentence investigation and the polygraph examination. See Ark. Stat. Ann. § 43-2301 (Repl. 1977). No effort was evkr made to controvert the report. The only statement ever made was Noland’s remark after he was sentenced that the report showed that he did not take the refrigerator. The report does not support this statement. It only states that Noland maintained, and continued to maintain, that his statements were true.

Theft of property with a value of more than $100.00 but less than $2500.00 is a class C felony, with a sentence upon conviction of not less than two (2) years and not more than ten (10) years. Ark. Stat. Ann. §§ 41-901 (l)(c) and 41-2203(2)(b) (Repl. 1977). It is within the trial judge’s discretion to set the punishment for a defendant anywhere within the statutory range of punishment provided for a particular crime. Ark. Stat. Ann. § 43-2307 (Repl. 1977); Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852. Perhaps the trial judge chose not to suspend the sentence of the appellant solely because of the unfavorable polygraph report, but opted for the minimum sentence due to the favorable recommendation of the presentence investigator. The record does not disclose the relative weight given to the various factors and, as stated earlier, there is no requirement that the trial judge enumerate the various considerations which made up his decision. In any event, the appellant cannot voluntarily take such an examination and then attempt to avoid unfavorable results by contending that the trial judge should have made further inquiry into the circumstances of the examination. We cannot agree with appellant’s suggestion that the fact that he may have answered untruthfully in order to protect someone else should have resulted in a suspension of sentence.

We find no abuse of the trial court’s discretion in the sentence imposed on the appellant, and therefore, the judgment is affirmed.

We agree. Harris, C.J., George Rose Smith and Hickman, JJ.

      Testimony on behalf of appellant indicated that Noland’s wife and mother-in-law actually returned the refrigerator. Appellant’s wife said that, for some reason, she suspected that Gene Earnhart had taken the refrigerator and that, after he admitted having it and agreed to surrender it, she and her mother picked it up, put it in her mother’s truck and returned it to Newby. Noland testified that he knew nothing of this.


text:
    Michael REDMAN and Milton REDMAN, Jr. v. STATE of Arkansas
    CR 79-33
    580 S.W. 2d 945
    Opinion delivered May 21, 1979
    (In Banc)

      Robert S. Blatt, for appellants.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal comes from a judgment revoking suspension of sentences of appellants imposed upon them in 1974 on charges of burglary and grand larceny and revoking probations granted on a separate charge of burglary. They were sentenced to five years in the Department of Corrections on each of the charges of burglary and grand larceny, but four years of the concurrent sentences were suspended upon condition of their good behavior. On the charge of burglary, they were placed on probation for five years, conditioned upon their good behavior. The petition for revocation was filed by the state on August 31, 1978. It was based upon the allegations that appellants had violated the terms of their probation and of the suspension of their sentences by committing burglary in Sebastian County on August 30, 1978. An amended petition was filed in November, 1978. It added an additional basis for revocation, that is, charges of burglary and theft of property on October 20, 1978, in Crawford County. Both petitions were granted. As a result, appellants were sentenced to terms of 21 years on revocation of their probations. They were sentenced to terms of four years on each count on the original burglary and grand larceny charges. The sentences on the latter charges were to run concurrently, but they were consecutive to the sentences on the revocation of probation. The pleas of appellants on the charges resulting in the original sentences had been nolo contendere. The three points alleged for reversal, as stated by appellants, are:

I
THE TRIAL COURT ERRED IN DENYING DEFENDANT MILTON REDMAN, JR.’S MOTION TO SET ASIDE HIS ORIGINAL PLEAS ON THE GROUND THAT HE DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTER THE PLEAS BECAUSE HE WAS ONLY 13 YEARS OF AGE IN 1974 WHEN THE PLEAS WERE ENTERED.
II
THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT, MICHAEL REDMAN, VIOLATED HIS PROBATION AND SUSPENDED SENTENCES BY BEING INVOLVED IN AN ALLEGED BURGLARY IN SEBASTIAN COUNTY, LAVACA, ARKANSAS, BECAUSE THE STATE FAILED TO PROVE THE DEFENDANT’S INVOLVEMENT BY A PREPONDERANCE OF THE EVIDENCE.
Ill
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE TESTIMONY OF DAVID MATCHETT ABOUT THE OUT-OF-COURT IDENTIFICATION OF A BONE HANDLE HUNTING KNIFE AND A.22 PISTOL CYLINDER PIN FOUND IN THE POSSESSION OF DEFENDANT, MICHAEL REDMAN ALLEGEDLY TAKEN IN A BURGLARY, WITHOUT THE ITEMS BEING OFFERED OR ADMITTED IN EVIDENCE BECAUSE THE EVIDENCE WAS HEARSAY AND VIOLATED THE DEFENDANT’S RIGHT OF CONFRONTATION.

I

Milton Redman, Jr. was 13 years old when the original sentences were imposed. He was represented by the public defender, who conducted plea negotiations with the prosecuting attorney. As a result of these negotiations, the prosecuting attorney agreed to sentencing Milton to the juvenile training school. This sentence was agreeable to the trial judge, but not to Milton, who wanted to serve his sentence at the place to which his older brother was to be committed. Milton now contends that his pleas on the charges, resulting in the probation and suspension of sentence, were not knowingly, intelligently and voluntarily entered.

This ground for reversal is urged on the basis that withdrawal of the pleas should have been permitted to correct a manifest injustice. A motion for withdrawal of the pleas of nolo contendere was filed by Milton after the first petition for revocation had been filed. Milton’s motion is based solely upon the allegation that he was under the age of 15 years and did not have the capacity, because of his age, to enter the pleas of nolo contendere on the original charges. We should say at the outset that we do not consider Ark. Stat. Ann. § 41-617 (Repl. 1977), barring the conviction of a person for an offense if he was less than 15 years of age at the time of its commission, to be a retroactive declaration of the public policy of this state, at the time of Milton’s probation and the suspension of his sentences. This was approximately 18 months prior to the effective date of § 41-617. It is argued on appeal that, even though this statute was not in effect at that time, it should have been. Obviously, the General Assembly did not think so, and we are in no position to give the act retroactivity, when the legislative branch did not do so. The presumptions against retroactivity are too great. See Snuggs v. Board of Trustees of Arkansas State Employees Retirement System, 241 Ark. 402, 407 S.W. 2d 933; Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297, 77 ALR 2d 329.

It is also urged that since, under the common law, one 13 years old was presumed to be incapable of discerning good from evil, it necessarily follows that such a person is incapable of understanding the consequences of a plea of guilty. We do not agree with this argument. Furthermore, we are convinced that this appellant fully understood the effect of his pleas of nolo contendere. The statutory bar against prosecution of one of tender years for a criminal offense, existing at the time of the pleas, applied to one under 12 years of age. See Ark. Stat. Ann. § 41-112 (Repl. 1964). We have never held that one above the age at which there is a want of criminal capacity was incapable of knowingly, intelligently and voluntarily incriminating himself or that the youth of an accused prevented his waiving constitutional rights. See, e.g., Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319; Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311; Curtis v. State, 255 Ark. 428, 500 S.W. 2d 767. The common law presumption that one under the age of 14 years does not have the capacity to comnit a crime is rebuttable and the prosecution can overcome it by clearly establishing the capability of such a youth to appreciate the nature and consequences of his acts and the mental capacity to know right from wrong in reference to the particular offense charged. The presumption against the capability of distinguishing good and evil is also rebuttable and it prevails only until the contrary is affirmatively shown by the evidence. It is also significant that the strength of the presumption decreases as the age of the youth approaches 14. Little v. State, 261 Ark. 859, 554 S.W. 2d 312, cert. den. 435 U.S. 957, 98 S. Ct. 1590, 55 L. Ed. 2d 809 (1978). We will be guided by these principles in determining the capacity of one of tender years to enter a plea of guilty or nolo contendere.

It is clear from this record that Milton had sufficient mental capacity to voluntarily, knowingly and intelligently enter his pleas of nolo contendere and that he did so enter them. The record of the proceedings on June 13, 1974, when the pleas of appellants were accepted and they they were sentenced consists of 22 pages. The proceedings were conducted with the meticulous care characteristic of the judge who accepted the pleas. At the outset, Judge Wolfe addressed appellants and the adults accompanying them. This record discloses the following:

THE COURT: It is important that both of you young men stop and feel free to say, “Judge, what does that mean?” or “What does this say?”
I want to say again to you please don’t hesitate to stop me and say, “Now, Judge, let me get this straight.” I haven’t asked your father or your grandmother. In your judgment do you feel that your sons and grandsons understand these papers?
MR. REDMAN: I believe they do.
MRS. REDMAN: I believe they do.

At the time the pleas were entered, appellants appeared with the public defender, their father and their grandmother. Milton said that his parents had plenty of time to talk to the public defender. He said that he understood that his attorney had told the court that he desired to enter a plea, that plea negotiations had been carried on between the public defender and the prosecuting attorney and that the prosecuting attorney’s recommendation was not binding on the court. He was able to state and understand the terms of the sentences that his attorney had advised him would be imposed, if the court found the prosecuting attorney’s recommendation to be reasonable. He said that he fully understood what would happen to him if he pleaded nolo contendere. He admitted that he had signed a comprehensive “Plea Statement —Nolo Contendere,” that he understood that by signing that paper he was telling the court that he understood everything on it and that there were no words on that paper that he didn’t understand. He said that he had gone over a paper entitled “Statement of the Court Respecting Statutory Probation” with his attorney, that he understood it and was willing to accept its terms. He also said that he understood the content, and was willing to accept the conditions of a paper entitled “Statement of the Court Respecting a Suspended Sentence.” He said that he had no questions about any of those papers and that he had been afforded plenty of time to go over the written “nolo contendere statement.” He stated that he understood that the court was accepting the plea and said he had nothing to say before the sentences were pronounced and that he had no other questions about the proceeding. Milton’s signatures on the statements mentioned were witnessed by the public defender.

Milton was 14 years of age on November 20, 1974. He was in the eighth grade at school, and was attending school when his pleas were accepted. He had passed the seventh grade and had never been required to repeat a grade. He testified at the revocation hearing about his previous pleas. He recalled having talked with the public defender, his father and his grandparents about the plea. He remembered the questions asked him by the sentencing judge. He acknowledged that he had known what the charges were. In his testimony, the only basis he gave for his pleas being involuntary was that, in retrospect, he knew that he had made an illogical decision in demanding that he be sentenced to the Department of Corrections, rather than the “reform school,” against the advice of his attorney, his father and his grandparents, so he could be with his older brother, with whom he was very close. He said that he was asking that the pleas be set aside because they were not “intelligently” entered and because of “the present status of the law in the State of Arkansas.” He said that he had been given only two days to think about the matter after the public defender had told him of the results of the plea negotiations. He did not testify that he had not known what the consequences of his pleas would be or that they were not entered voluntarily.

Don Langston, Sebastian County Public Defender since December, 1971, also testified. He said that he had twice talked with appellants and their family about the plea arrangements. He said that the evidence against appellants had been overwhelming and that he had advised them that going to trial was against their best interests. He did advise both to plead guilty, but did not advise Milton to enter the plea on the sentencing conditions imposed, only because he very strongly advised Milton to accept the negotiated sentence to the Juvenile Training School, where the period of detention would not have been definitely fixed. Langston had explained the parole law to Milton. Langston said that Milton was adamant about the matter and that he had felt that Milton would not enter a plea unless he could “go with his brother.” Langston had felt that, even though neither of the appellants was very bright, both were capable of understanding the proceedings and had actually understood their rights and were aware of the sentences they would receive. He stated that Milton voluntarily entered his plea, against Langston’s advice. Langston stated that he had fully informed Judge Wolfe about the differences between him and Milton about the sentences and that Judge Wolfe would have been willing to commit Milton to the training school. We are well aware of the fact that this experienced public defender has always been vigorous in the assertion and protection of the rights of the clients he represents.

It is significant that no parent or grandparent of Milton testified at the revocation hearing. Appellant never questioned the lack of wisdom of his plea until after the petition for revocation was filed and, even at the hearing, he questioned only his own judgment in refusing the commitment to the training school, and not the wisdom of his admission of guilt. We cannot say that the trial court erred in denying the motion for withdrawal of the nolo contendere pleas.

II

Michael Redman contends that, not only is the finding that he participated in a burglary in Sebastian County clearly against the preponderance of the evidence, there is no evidence to connect him with that offense. The gist of his argument is that there was no one who could identify him as one of the two people who burglarized the Jones residence, ten miles northeast of Lavaca. It is true that it is only on the basis of circumstantial evidence that one could say that Michael participated in that burglary. He argues, however, that the circumstances can, at best, only arouse a suspicion that he was a participant. We do not agree.

Mrs. Guy Jones testified that two persons came to her residence on August 30, 1978, in a red pickup truck, on the back of which was a white “camper.” The truck bore the license No. FKF-116. She identified Milton as one of the two persons. She said that, soon after this vehicle arrived at her house, and someone had knocked at the front door and shaken it, Milton peeked in a picture window and left in the pickup truck. He soon returned and entered a patio door by springing a lock on the storm door. She had seen the truck being driven back to her residence after she had heard someone open the screen door from her patio. She had also heard two persons talking just before Milton entered.

When Milton saw her, he left the house and departed in the pickup truck. She reported to the sheriff’s office about 20 minutes later. Her report was delayed while she called her father-in-law and cousin for advice. Two deputy sheriffs were at Rogers Avenue and Massard Road in Ft. Smith, heading toward Lavaca, when they spotted the vehicle Mrs. Jones had described. They stopped the vehicle. It was occupied by appellants. The arrest was made about 25 minutes after Mrs. Jones called the sheriff’s office. Although Mrs. Jones could identify Milton, she was unable to identify Michael as the second person who had been at her residence.

The license plate on the vehicle was registered in Milton’s name. The same vehicle was seen at the scene of the Crawford County burglary. A deputy sheriff found Michael’s wallet, containing his driver’s license and other identification, in the pickup truck after the homeowner in Crawford County had taken the keys from the vehicle, which had been left parked at his house, after a burglar he had caught in the house had taken flight. Someone had been backing the truck toward the door just before the homeowner saw the burglary in the house. Within an hour, Ricky Selph and Michael were arrested by Deputy Sheriff Grill, who had seen two persons in the vehicle on Highway 50, just north of this residence on Highway 59, 45 minutes prior to the burglary. At the time of the arrest, Michael and Selph were in a wooded area on a county road, east of and parallel to Highway 59. Both of them appeared to have been running. Selph fit the description of the person the homeowner saw in his house and later saw running from the scene. The place of arrest was about one mile from the scene.

This circumstantial evidence afforded a very substantial basis for the trial court’s finding that Michael had been with Milton and was in the pickup truck when Milton entered the Jones residence.

Under present law, there is no distinction between the criminal responsibility of an accomplice and the person who actually commits the offense. Ark. Stat. Ann. § 41-302, -303 (Repl. 1977); Parker v. State, 265 Ark. 315, 578 S.W. 2d 206. Presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. The evidence here is greatly dissimilar to that in Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873, and other cases cited by appellant, where the only evidence to connect an accused with a crime is his association with a participant at a time and place remote from the offense. The additional circumstances here afford a basis for finding that Michael was at the scene of the Jones burglary.

Ill

David Matchett was the owner of the home burglarized in Crawford County. After the burglar took flight from the house, Matchett found some of his guns stacked by a door. The guns had been kept in a gun cabinet in another room. Upon searching the house, he found a .38 caliber pistol and a .22 caliber pistol missing. About two hours after the officers came to his house in response to his call, Matchett was called to come to the Crawford County Sheriff’s Office to view some items.

Grill had testified that he observed a bone-handled hunting knife in Michael’s rear pocket when he arrested Michael and Selph. Grill had taken the knife and put it in the property room of the sheriff’s office. On the way to the sheriff’s office after the arrest, Grill had heard a shuffling noise in the rear of his patrol car, where he had placed the two persons he had arrested. He said that he then looked back and observed Michael take an object from his right front pocket and deposit it on the floor. Grill stated that, upon arrival at the jail, he had immediately opened the rear door near which Michael had been sitting and picked up this object, which he described as a cylinder pin from some kind of pistol.

Among the items Matchett saw were a hunting knife and a cylinder pin from a gun. When Matchett was asked at the hearing to describe the hunting knife he was shown, appellant’s attorney objected, unless the hunting knife and pin were brought in, so appellants could see them and the witness could be cross-examined as to marks that might afford a basis of identification. The deputy prosecuting attorney reminded the court that Grill had stated that he had shown the knife and pin to Matchett. Appellant’s attorney then objected on the basis that it was improper for the witness to identify items that were not before the court and that appellants would be deprived of the right of cross-examination and that he had never seen such a procedure in a trial. When appellants’ attorney stated that he saw no problem in the production of the items, the deputy prosecuting attorney responded that they were being held as evidence in Crawford County. Appellants’ attorney then objected that no chain of custody had been established and that the state could not establish a burglary without introducing items taken in the resulting theft. After the trial judge overruled the objection, Matchett testified that when he went to the sheriff’s office, he was shown a bone-handled knife about six inches long that had “brown molded into it” and that it was his knife, but that he had not reported his knife as missing when he reported the incident to the officers who came to his residence. He also testified that he was shown a black metal pin, about three inches long, grooved around the top end “where it slips into a .22 gun.” He said that he identified it as his pin and that it regularly fell out when the gun was carried but that he did not know why. Matchett admitted, on cross-examination, that there were no identifying marks or features on either the knife or pin. He said that the pin was like any other pin that came from the particular make and model weapon that he owned, and that the knife he saw was like the knife that he owned. He said that the knife looked like his knife. He said that the .22 caliber gun was at the police department in Van Burén.

The multi-faceted objection of appellants to the testimony of Matchett is somewhat baffling. We might well dispose of this point under the rule adopted in Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606, because appellants have certainly cited no authority which would support their unconvincing argument. An accused certainly has no right to be confronted with physical evidence under Art. 2, § 10 of the Constitution of Arkansas, or Amendment 6 to the Constitution of the United States. Those constitutional provisions are directed only to an accused’s right to be confronted by the witnesses against him.

The hearsay rule has no application to physical objects. It applies to out-of-court statements only. Ark. Stat. Ann. § 28-1001, Rule 801 (c) (Supp. 1977). It would have applied had the state relied upon testimony of Grill that Matchett had identified the items. Wilkens v. State, 261 Ark. 243, 547 S.W. 2d 116.

The best evidence rule applies only to writings, photographs and recordings. Ark. Stat. Ann. § 28-1001, Rule 1002 (Supp. 1977). It certainly had no application here. The fact that exhibition of such objects would more clearly and forcefully explain their nature, appearance or condition is not a valid objection to oral evidence concerning them. Washington v. State, 254 Ark. 121, 491 S.W. 2d 594; Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996. If any chain of custody was required, it was established by the testimony of Grill.

We find no error in the admission of the testimony pertaining to the knife and connecting pin. Whatever discretion the trial court had in the matter was not abused.

The judgments are affirmed.

Purtle, J., dissents.

      2The Uniform Rules of Evidence, except for those with respect to privileges, do not apply in sentencing or probation revocation proceedings. Ark. Stat. Ann. § 28-1001, Rule 1101 (b) (3). Still, a defendant in such proceedings is not entitled to have rules of evidence stricter than those set out in the Uniform Rules applied in such proceedings.